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Victoria's Secret Uses DMCA To Suppress Public Criticism of their Products
Adam Holland, December 19, 2012
Abstract: Victoria's Secret responds to culture-jamming activists and critics with a DMCA-based shutdown of their entire web presence.
Were trying something new here at Chilling Effects today. We are going to take an in-depth look at a particular take-down notice, one that is especially interesting or newsworthy, or both, and try to tease out and examine all of its implications, policy, cultural and otherwise. We plan to do this on a regular basis, and hope it will become a regular feature of the site. So without further ado, "The Takedown Of The Week".
Were trying something new here at Chilling Effects today. We are going to take an in-depth look at a particular take-down notice, one that is especially interesting or newsworthy, or both, and try to tease out and examine all of its implications, policy, cultural and otherwise. We plan to do this on a regular basis, and hope it will become a regular feature of the site. So without further ado, The Takedown Of The Week.
Some readers may have heard about the recent culture-jamming activities of a group called FORCE: Upsetting Rape Culture, specifically with respect to their actions regarding Victorias Secret (VS) and that companys recent new line of slogan-emblazoned lingerie. If you want the tl:dr, check out the EFFs asalways stellar write-up..
[Note: for the purposes of illustration, we will be linking to some VS product pages in this Weather Report. This does not, nor is it meant to, imply any endorsement of or from VS, or indeed any official connection at all between VS and Chilling Effects.]
The details are pretty entertaining, so we will get into them. Recently VS, no strangers to controversy released their new PINK line, garments and accessories with words printed on them, including things like panties with the wordsIm the Party , Wild, as well as Yes, No, Maybe Sure Thing, Life of the Party and Unwrap Me. The more egregious of these appear to no longer be available for sale on the VS website, although its possible theyre just hard to find.
Feeling that underwear with messages like Unwrap Me and Yes No Maybe was perhaps not the best way to empower women or create a culture that treated women as equally valid human beings worthy of respect, FORCE decided to build off the PINK line, but substituting messages of their own. FORCEs principals discuss their intent and experiences in an interview here.
Critically for the purposes of a TM-related claim ( the copyright claim has few details and little substance), the website was (and is) headed with the words Victorias Secret above a solid bar of color, a bar that on the actual VS website has links to categories of product.
Of course, there werent any consciousness-raising panties for sale. The entire site was the work of FORCE, and people realized this pretty quickly. And as soon as the media began covering the story, it became harder to argue that any consumer would be misled. From the perspective of TheMarySue the site was clearly intended to fool the unwary viewer.
Regardless, it is what happened next that Chilling Effects is, and frankly, everyone should be, more concerned with. Victorias Secret was clearly not thrilled that someone was (to them, at least) seeking to masqueradehowever briefly, and regardless of the message or intentas Victorias Secret. The VS lawyers immediately sent a takedown letter to Bluehost, Inc., the host for the Pink Loves Consent website. FORCE was kind enough to send fair use.]
VS also took action against FORCEs web presence in other places, including Facebook, Twitter and Pinterest. The Daily Dot has a nice run-down of back up now.
Facebook removed the groups page from search results, where it still does not appear as of this writing.
Pinterest took a more gradated approach, warning the group of possible infringement, asking them "to change your profile description to explicitly state no affiliation with the brand, and to change your board titles," and giving them a five-day deadline to respond or have Pinterest make the changes for them.
In terms of the effectiveness of generating, contributing to, or sustaining a conversation on a topic, the power of such techniques is inarguable. A lot of people, who might not have otherwise, had their horizons broadened, and got involved in a conversation about culture, sexuality, corporate ethics, and more. A Google search for Victorias Secret FORCE on December 19th brought up mostly news coverage of the controversy, but even now had an actual VS link as the sixth result, showing the power of the campaign (and possibly also of the Streisand Effect). The story was covered nationally by media, an featured on a wide range of websites including the NY Daily News, the Huffington Post, and Gawkers Jezebel.
This is the weak backbone problem that the EFF has described so eloquently. some third-party services would rather get rid of a user (or their allegedly offending content) than be drawn into a legal dispute, even where there is no liability risk to the third-party provider.
Its a challenge to be sure, and as the massive increase in the number of takedowns issuing to Google alone may illustrate, the DMCA is a tool on which entities are relying more and more. To do what, and how appropriately is less clear. As Googles Legal Director points out As policymakers evaluate how effective copyright laws are, they need to consider the collateral impact copyright regulation has on the flow of information online.