$1500 Legal Threat from Consumers Union


Their demand

I received a legal threat demanding a $1500 settlement from Wendy Wintman, manager of legal services for Consumers Union, publisher of the magazine Consumer Reports. It seems to be about synopses of product reviews in my mirror of Amway: The Untold Story, though she repeatedly refers to it as an advertisement and seems unaware of its correct address.

[An annotated version of this letter may be read at Chilling Effects Clearinghouse.]

My response

Perhaps I should've ignored her uninformed demand, and let her try to get an injunction against www.amway.robinheart.aol. If it went to trial, she'd find the minimal amount any court would award is not $1500, it's zero. Yet I wanted to tell her she was sullying the reputation of a respectable publication. So, I replied:

From: Robin Lionheart 
Subject: www.amway.robinheart.aol (Re: File #NC2663)
Date: Sun, 3 Mar 2002 21:25:26 -0500

Dear Ms. Wintman:

www.amway.robinheart.aol seems like a fictional domain name. As far as I
know, there is no .aol global top-level domain. If such a domain truly
exists and is fraudulently registered in my name somewhere, I should very
much like to speak with the registrar.

I do maintain a copy of Sidney Schwartz's Amway: The Untold Story website
at http://amway.robinlionheart.com/, which makes fair use of Consumer
Reports reviews by summarizing 16 reviews of Amway products. However, no
reasonable person could construe A:TUS as an advertisement for Amway
products or any other product.

You write that learned of this advertisement from the eyes and ears of
faithful readers. Perhaps that report is the source of the fictional domain
name you cite. It may even be a deliberate slander intended to generate a
legal threat in order to shut down my site.

I have great respect for Consumer Reports and its mission, and appreciate
the importance of enforcing your copyright. If I should ever have occasion
to quote Consumer Reports ratings or reviews in an advertisement, I assure
you I'll ask Consumers Union for consent.

Consumer Reports' reputation is indeed precious. If its representatives
would prevent it from being tarnished, it would behoove them not to fire off
legal threats demanding financial settlements from innocent parties over
unverified rumors about non-existent web addresses.

Robin Lionheart


Wendy's tone became defensive and her demand for $1500 softened into a request to remove just the review summaries:

In turn, I addressed the concerns stated in her original letter by offering to add a disclaimer that Consumers Union was not affiliated with the site:

From: Robin Lionheart 
Subject: A:TUS's non-commercial summaries of Amway product reviews (Re: File #NC2663)
Date: Mon, 4 Mar 2002 17:13:37 -0500

Ms. Wintman:

I gather that Consumers Union's objections are based on the mistaken
impression that its ratings and reviews are being put to commercial purpose.

By my count, your letter explicitly referred to my site as an advertisement
3 times (your advertising, your advertisement, your current
advertising), and also makes reference to your commercial use.

My mirror of Amway: The Untold Story has no commercial use or purpose. The
site criticizes the dishonest business practices of Amway. When Amway's
lawyers forced Sidney Schwartz to shut down his original site, many
unrelated people posted copies of his website. My mirror, like other mirrors
of the site such as http://www-2.cs.cmu.edu/~dst/Amway/AUS/,
http://www.suburbia.com.au/~fun/amway/, and
http://www.goodnet.com/~lippard/amway/, exists not to serve any commercial
interest, but to oppose censorship by Amway's legal bullying.

Rereading the summaries of the Consumer Reports reviews on the site, they
seem pretty unobjectionable. Factual statements like

    Amway Buff-Up aerosol spray furniture polish was in the lowest-rated of
three groups of products.


    At $600, the Amway system was 2 to 6 times more expensive than the 9
other systems, although it does come with 2 sensors and 3 transmitters--more
than any of the others.

hardly seem to constitute a vast majority of the referenced articles. The
only quote that gives me pause is a five-paragraph excerpt from the
September 1991 Dish Drops review, but even that seems like the conclusion to
a much longer article.

Perhaps there is a better way to resolve Consumers Union's concerns than
taking down a section of Amway: The Untold Story.

According to your initial letter, the reason for Consumer Union's policy is
that people would distrust Consumers Union's findings if they perceived it
as somehow affliliated with a commercial interest. Though A:TUS is a
grassroots consumer advocacy site, it makes sense that Consumers Union
wouldn't want to be perceived as endorsing the non-commercial opposition to
a commercial interest either.

We can prevent such a perception and discourage actual copyright
infringements without altering Mr. Schwartz's text. Four of the summaries
contain product review excerpts. I propose to add Consumers Union copyright
notice for the review excerpts, along with general statements to the effect
that commercial use of Consumer Reports reviews is prohibited and Consumers
Union is neither affiliated with nor endorses Amway: The Untold Story.

Would that be acceptable? What wording would satisfy your legal department?

Robin Lionheart

Wendy rejected my offer:

Consumers Union misinterprets fair use

Part of the legal standard of fair use is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. But Wendy turns it upside-down. She wrongly claims the issue isn't how much of the magazine articles the quotes are, it's how much of this site the quotes are. Even by her misreading, part of a single page out of 126 comprising Amway: The Untold Story is a small part of this website. Her boilerplate claim that she discussed the matter with CU's counsel is dubious. Given Wendy's apparent ignorance of the rest of this site's content and even its address, I doubt she even looked at it.

Wendy's point that Consumers Union is a fee-paid site is irrelevant, but telling. Despite fine words in her form letter about Consumer Reports' precious reputation, it seems her real concern all along was consumer.org subscription fees.

Another part of the fair use standard is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Wendy ridiculously defines as commercial anything that affects their business, and argues that merely stating what rating they gave a product affects their business of selling their information (as if facts were property). By this illogic, it'd be a copyright infringement to state that film critic Roger Ebert gave Spirited Away a rating of four stars.

Perhaps I should inform her of another commercial threat to consumer.org's business: public libraries. Librarians let people come in and read back issues of Consumer Reports, giving consumers for free what Consumers Union charges for.

[Wendy has threatened others for referring to Consumer Reports reviews. Jim's Home Repair Stuff has also received baseless legal threats from her.]

[The Free Expression Policy Project cited this page in their report Will Fair Use Survive? Free Expression in the Age of Copyright Control.]

A reader responds

Robert Brooks of Texas wrote to then Media Director of Consumers Union's Washington DC office and kindly sent me a copy. [David Bulter no longer works there as Media Director. If you too wish to write Consumers Union, contact their current staff.] Thanks, Robert!