The corporate crackdown on fan websites

By Jeff Yorio

"Imperial Department W Provisions," Simpsons site shut down

Fox threatens
legal action

Webmasters
beseiged

"Fair use"
an issue

Strange things are happening in cyberspace. Visitors to The Simpsons Files , which once housed a pretty cool stash of sound files such as Homer's "mmmm . . . forbidden donut," have recently been greeted by a downright forbidding cease and desist order. Issued in accordance with the very X-Files­sounding "Imperial Department W Provisions," it reads like something Darth Vader would write if he had gone to Yale Law School. But it's no joke. On April 9, X-Files fan Eric Wacker received a similar letter via certified mail from the same law firm of Baker & Hostetler, legal representatives for Fox, which owns both shows. Informing Wacker that their "Internet monitoring program" had discovered his website used material from The X-Files, the letter waved a finger of admonition: "We must respectfully ask that you remove all audio clips and video clips relating to The X-Files from your website as soon as possible. If you do not remove these properties, we may be forced to take legal action to have them removed."

"Internet monitoring program?" Is that Newspeak? Is this 1984?

Eric Wacker has joined the ranks of dozens of fans who have received cease and desist letters, from Fox, Viacom and other media titans. And like many besieged webmasters, he sees an alarming trend that touches on free speech issues and is emblematic of corporate unease with the web. "Implementing this kind of censorship in order to have total control over the show's 'image' comes at the price of the fans' uninhibited enjoyment of the show," says Wacker. "And what exactly does 'relating to' The X-Files mean? If you happened to have a digital film clip of Gillian [Anderson] accepting one of her Golden Globe Awards for her outstanding work in the show, would that 'relate to' The X-Files?"

Such questions fall under the province of "fair use," a legal provision that permits the use of previously copyrighted material. Fair use is determined by four factors: the purpose and character of use (e.g., whether it is of a commercial nature), the nature of the copyrighted work, the amount and substantiality of copying, and the effect that the new work may have on the potential market for or the value of the original. Judith Gran, an attorney with the Public Interest Law Center of Philadelphia, points to the fourth criterion as the most important. "The issue for fair use is basically whether the market for the original is adversely affected," she explains. "The burden of proof is on the copyright owner to prove that its market has been harmed." Gran cites the 1984 Supreme Court decision in Sony Corp. of America vs. Universal City Studios as a possible ray of hope for fans. The court ruled that use of videotape recorders didn't infringe on Universal's copyrights because there was no evidence to suggest that VTRs harmed the potential market for the copyrighted works. If the exact reproduction of The X-Files via video recorder isn't copyright infringement, Gran questions whether a few frozen images or sound clips on websites could be considered anything other than innocuous.

No test case has yet gone to court, but cease and desist letters began appearing in fans' mailboxes as far back as October 1995, when Jeanette Foshee received the fateful missive from Twentieth Century Fox legal counsel David G. Oakes. Foshee had created a volume of Simpsons icons, which were freely made available on the Internet. In her case, Fox implied that fines of up to $100,000 could be applicable if she didn't halt production and supply the names of anyone who had downloaded her icons. Foshee reluctantly complied, but the issue didn't end there. Foshee achieved folk hero status after Oakes' letter was posted on The Simpsons Archive site , along with the Fox network's e-mail address to which one could forward protests. Rumors persist that Oakes' computer crashed after a blitzkrieg of vitriolic e-mail from angry Simpsons fans.

Whatever the truth of that story may be, the Foshee incident became the catalyst for a myriad of protest sites in cyberspace. X-Files fans have launched a Free Speech is Out There campaign . Trekkers are ranting about the Wrath of ViaKhan and have set up an AntiViacom HQ . All the negative publicity seems to have sent the higher-ups running for cover. "The protests have become so vocal that [Oakes] has been refusing to talk with any reporter or fan in person," Foshee reports. "Instead there is a 'Fox representative' making generic replies about Oakes' actions. Does that sound like a man and a network who is in the right?" Indeed, Oakes declined to be interviewed for this story, but not without grumbling a bit about Jeanette Foshee.

What touched off this crackdown on websites? In the May 1997 issue of The Web Magazine, writer David Pescovitz discusses one possible scenario in "Hollywood's War on the Fans," which quotes webmaster Gil Trevizo's contention that Oakes told him X-Files creator Chris Carter prompted the first site shutdowns. Fans flinch at the idea that a show's creative team, whom they imagine to be their staunchest allies, could be behind the current purge. The scenario may not be quite as bleak as that, though. According to a Fox source close to the show, The Simpsons creator Matt Groening can often be found surfing around the hodgepodge of tribute sites on the net and chuckling at the diversity of Simpsons subculture.

But if corporate lawyers call the shots, the subculture that amuses Groening could be become an endangered species. That's what concerns Misha Glouberman, who's been documenting cyber skirmishes at Trademark Wars on the Web for about a year. "Three years ago, we had this enormous media society in which none of the [major] media players were there," he recalls about those halcyon days. "It was very easy for us to get excited about whatever our particular fantasy of the ultimate information society might be." Today, the increase in commercial websites has more than a few people nervous about the future of the net. Doomsday forecasters' worst nightmare is that big corporations jockeying for position will push individual publishers off the playground.

Those fears aren't entirely unfounded. Since late 1996, Viacom has been among the most zealous in its hunt for copyright infringers, sending out cease and desist letters to some Star Trek webmasters. Fans insist they are the victims of a witch-hunt by the industry's chief inquisitor: Microsoft. In December of 1996, Paramount (a subsidiary of Viacom) launched an "official" Star Trek website called Star Trek: Continuum in conjunction with Microsoft. Some features of the site are available exclusively on the subscription-only Microsoft Network, and the site is widely believed by Trekkers to be the impetus behind fan closures. "I really do think Microsoft pushed Viacom into trying to shut down all the fan sites because they're competing with Star Trek: Continuum," says Ben Higgins, whose own Trek site was closed last August. Higgins believes this corporate heavy-handedness could spawn a whole new subculture of disgruntled web surfers. "What you're going to see is the development of an 'undernet' where people who don't want to be bombarded by advertisements on every web page can go."

Long before the web became a reality, media visionary Marshall McLuhan declared, "The new electronic interdependence recreates the world in the image of a global village." Today, what was once considered a unifying medium seems to have become a vehicle of divisiveness. But attorney Judith Gran points to one possible model for negotiating a cease-fire on cease and desist letters.

At the height of the original Star Wars phenomenon, Lucasfilm was wary of giving its stamp of approval to the tremendous amount of fan fiction being published. Their solution, according to Gran, was to set up a no-fee licensing bureau that reviewed material and offered criticism about what might be considered copyright infringement. The ugliness of legal threats was avoided, and fans could still have their say. "That was an ingenious and creative way to accomplish the same result without alienating a lot of fans," says Gran. For Viacom and Fox, a little bit of ingenuity and creativity might go a long way.

Further information on the current status of Star Trek websites is available at:

http://www.loskene.com/updates.html

A related article in Wired magazine can be accessed at:

http://www.wired.com/news/story/1076.html

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Fans, websites, free, Simpsons, X-Files, Trek, Fox, Viacom, Paramount, Microsoft