Gibney, Anthony & Flaherty, LLP
665 Fifth Avenue
New York, New York 10022
Re: Barney Parody
Dear Mr. Carlin,
As you may recall, I am the Legal Director for the Electronic Frontier Foundation (EFF). As I informed you in March, 2002, EFF represents Dr. Stuart Frankel with regard to claims made by you and your clients against him for a parody of Barney that he has published. I understand from my client that, despite the clear legal prohibition against direct communications to represented parties, on October 11, 2005, you sent another cease and desist notice to Dr. Frankel for the same webpage that you threatened in 2002, now hosted at: <http://dustyfeet.com/evil/enemy.html>.
Mr. Carlin, I am greatly saddened and surprised at your renewed harassment of Dr. Frankel . The webpage is unequivocally protected parody under both the First Amendment and the settled law of fair use of copyrighted works. Since the webpage has not materially changed since I last wrote you, I refer you to my letter of March 1, 2002, for the requisite legal analysis. I enclose a copy of that letter for your convenience. I do note that in your October 11, 2005, letter you do omit your facially ridiculous claim that a “threat of violence” against an imaginary character somehow created legal liability for Dr. Frankel.
You have, however, renewed your a threat to make a claim of copyright infringement to Dr. Frankel’s internet service provider. I must strongly caution you against taking this step. Making a false claim of copyright infringement to Dr. Frankel’s service provider would subject you to liability under 17 U.S.C. §512(f), which provides:
Any person who knowingly materially misrepresents [to a service provider]. . . that material or activity is infringing shall be liable for any damages, including costs and attorneys fees, incurred by the alleged infringer . . . who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or the activity claimed to be infringing. . .
Please consider this letter formal notice that any such claim would be a material misrepresentation to Dr. Frankel’s service provider.
It may interest you to know that in a somewhat similar situation in 2004, EFF successfully obtained a published decision granting summary judgment under 17 U.S.C. §512(f) against a company that materially misrepresented that a website engaging in fair use of copyrighted works was infringing. That case subsequently settled for $125,000 payment by the company to EFF and its clients. The case is Online Policy Group v. Diebold, 337 F.Supp.2d 1195 (N.D. Cal. 2004). You can read more about that case here:
EFF Wins in Diebold Copyright Abuse Case
Diebold Coughs Up Cash in Copyright Case
In short, your claims against Dr. Frankel are unfounded and improper. Should you make them to Dr. Frankel’s ISP, he intends to take appropriate action to protect himself and in that event EFF will look forward to extending the caselaw supporting 17 U.S.C. §512(f) penalties against those who make material misrepresentations of copyright infringement. Finally, in the future please abide by the clear ethical rules preventing direct contact to represented parties and direct all future correspondence on this topic to me.
ELECTRONIC FRONTIER FOUNDATION
Cindy A. Cohn
cc: Dr. Stuart Frankel
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