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.
From: wintwe@consumer.org To: lionheart@robinlionheart.com Subject: File #NC2663 unauthorized use of Consumers Union's material Date: Thu, 28 Feb 2002 15:16:54 -0500 Robin Lionheart Saw Creek Estates Bushkill, PA 18324-9402 re: www.amway.robinheart.aol Dear Ms. Lionheart: As Manager of Legal Services for Consumers Union of United States, Inc., the nonprofit testing organization that publishes CONSUMER REPORTS® magazine, I am writing to you because we have recently learned that you have posted our Ratings and discussed the general conclusions of various articles that rate Amyway products o your site. This material refers to CONSUMER REPORTS® and our Ratings. Your commercial use of our name and Ratings was done without our knowledge or consent. Your advertising not only violates Consumers Union's long-standing policies, but it also constitutes a plain violation of our legal rights. Each issue of CONSUMER REPORTS® is fully protected under the United States Copyright Laws, 17 U.S.C. §§ 1 et seq., and unauthorized copying from our materials is strictly prohibited. CONSUMER REPORTS® is a federally registered trademark. Such use may also contravene our rights under state laws prohibiting false advertising and other unfair trade practices. We have learned of your advertisement through the eyes and ears of our faithful readers. We are just as concerned as the consumer because your copying and posting the Ratings from CONSUMER REPORTS® is no different than copying and distributing the Ratings to more than one million consumers. Ignorance or a lack of awareness of our policies and rights may cause significant harm to both Consumers Union and the consuming public. Overwhelmingly, once they are aware of Consumers Union's rights, product manufacturers, sellers, and advertisers throughout the United States agree to refrain from any further advertising use of our name, Ratings, and materials. I want you to understand why Consumers Union most strenuously objects to unlawful advertising. Since its founding in 1936, Consumers Union has built its hard-earned and well-deserved reputation for objectivity, accuracy, and lack of bias upon its independence from commercial interest. Consumers Union does not accept outside advertising for any of its publications nor do we accept commercial contributions. Permission is never given to anyone to use our name or Ratings for advertising or commercial purposes. These policies are stated in every issue of CONSUMER REPORTS®, as follows: We accept no advertising and buy all the products we test on the open market. We are not beholden to any commercial interest. Our income is derived from the sale of CONSUMER REPORTS® and our other publications and information services, and from nonrestrictive, noncommercial contributions, grants, and fees. Our Ratings and reports are intended solely for the use of our readers. Neither the Ratings nor the reports may be used in advertising or for any other commercial purpose. Consumers Union will take all steps open to it to prevent commercial use of its materials, its name, or the name of CONSUMER REPORTS®. Those who violate these policies damage Consumers Union's most precious asset--its reputation for independence and integrity. Our name is tarnished by advertising use. It creates public distrust of our findings and the perception that in some way Consumers Union is somehow affiliated with the very same commercial interests whose products are being evaluated. I have discussed this violation with CU's counsel. He informs me that your advertisement is indeed a violation of copyright law and of our rights. Therefore, please sign the original letter where indicated (keep copy for your files) and return it to me together with a check made payable to Consumers Union of U.S., Inc. for $1500; the minimal amount any court would award. This must be received within the next ten days so that we may consider this matter resolved without further proceedings. If you fail to do so, we will refer this matter to our attorney for appropriate legal proceedings. In the event of legal action, Consumers Union would be entitled to recover its damages, costs, and attorney's fees, as well as your profits. Your cooperation will avoid such time-consuming and expensive proceedings. I trust that you will agree to discontinue your current advertising and to respect our rights in the future. Thank you for your courtesy and anticipated cooperation. I would be pleased to answer any questions. I can be reached at (914) 378-2448. Sincerely, Wendy Wintman Manager, Legal Services Consumers Union of U.S., Inc. 101 Truman Avenue Yonkers, NY 10703-1057 PH: 914-378-2448 FX: 914-378-2946 E-Mail: wintwe@consumer.org
[An annotated version of this letter may be read at Chilling Effects Clearinghouse.]
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 <lionheart@robinlionheart.com> To: <wintwe@consumer.org> 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'sAmway: The Untold Storywebsite 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 anadvertisementfor Amway products or any other product. You write that learned of thisadvertisementfromthe 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:
From: wintwe@consumer.org To: lionheart@robinlionheart.com Subject: RE:www.amway.robinheart.aol(Re: File #NC2663) Date: Mon, 4 Mar 2002 10:22:41 -0500 Dear Robin Lionheart: I erroneously referred to your site as an advertisement one time. The remainder of my letter refers to the posting of our material. It is copyrighted. Your use goes beyondfair usesince it comprises a vast majority of the site of the ratings of Away products. We did not give you permission to post our copyrighted material and do not grant such permission. You are therefore requested to take it down from your site immediately. Thank you.
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 <lionheart@robinlionheart.com> To: <wintwe@consumer.org> 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 toyour commercial use. My mirror ofAmway: The Untold Storyhas 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 likeAmway Buff-Up aerosol spray furniture polish was in the lowest-rated of three groups of products.andAt $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 avast majorityof 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 ofAmway: 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 endorsesAmway: The Untold Story. Would that be acceptable? What wording would satisfy your legal department? Robin Lionheart
Wendy rejected my offer:
From: wintwe@consumer.org To: lionheart@robinlionheart.com Subject: RE: TUS's non-commercial summaries of Amway product reviews (Re: File #NC2663) Date: Tue, 5 Mar 2002 08:35:48 -0500 There is no wording that would satisfy us, Ms. Lionheart. I do apologize for the unfortunate use of the wordadvertsing(or some form of it). Out of necessity, I must use form letters and occasionally, I do pass over some of the modifications that need to be made in my haste to get to all the letters. While the 1991 article on dish drops may be a summary of a larger article we published, the issue is how much of YOUR site it comprises. It, along with the other Ratings you post is substantial. Furthermore, Consumers Union is a fee-paid site. You are giving consumers for free what we charge for as part of our subscription, that is, Ratings of cleaning and other Amway products. This is commercial in that it affects our business, that of selling our information. Again, we will not give you copyright permission because we do not grant you any permission. Thank you Wendy Wintman Manager, Legal Services Consumers Union of U.S., Inc. wintwe@consumer.org
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.]
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!
From: Robert Brooks <xxxxxxx@xxxxxxxxxxx.xxx>
To: butlda@consumer.org
Cc: lionheart@robinlionheart.com
Subject: Legal bullying inappropriate for CU
Date: Mon, 14 Oct 2002 16:50:22 -0500 (CDT)Dear Mr. Butler,
I am writing to express my indignation that a respected organization such as Consumers Union would stoop to the level of bullying, as evidenced by the quasi-legal threats issued against Robin Lionheart for the fair use of small excerpts of your Amway reviews. As detailed on Robin’s site, at<http://amway.robinlionheart.com/cuthreat.xhtml>, the CU legal department has shown very poor judgement in choosing to send a letter demanding payment from what is clearly and obviously a non-commercial mirror of a non-commercial consumer advocate site.
I understand the imperative felt by CU that its reviews not be used for commercial purposes. Consumers Union, and Consumer Reports magazine, have always held an esteemed position by not allowing their reviews to be quoted in advertising. Every time I hear an automobile ad that mentions your competitors’ positive ratings, I wonder,
What does Consumer Reports say about it?But your legal department’s misdirected focus on the robinlionheart.com mirror of the
Amway: The Untold Storysite calls into question the entire focus of your policy. The consumer’s trust should be the focus of your efforts, but attacking non-commercial fair use inspires not trust, but suspicion. Furthermore, the determination offair useshould be made in the context of the site — and the communications detailed on Lionheart’s site show that the researcher did very little checking of the site’s intent and context.As your publication often discovers, there can be a wide gulf between a company’s public relations image and their bottom-line services and products. Picking an ill-advised fight with an innocent third party can turn your good reputation into a dreaded empty-circle
poorrating. I sincerely hope your legal department will reconsider — if it hasn’t already — its position regarding Robin Lionheart’s mirror of theAmway: The Untold Storysite. Such flexibility in judgement will show that Consumers Union is truly concerned about their integrity — and not just about its market position.Thank you for your time, and God bless.
--
Robert Brooks /
xxxxxx@xxxxxxxxxxx.xxx
Normally available at robertb@dixie-chicks.com
www.dixie-chicks.com - the whole Dixie Chicks story!
I hope you will put- 2 Cor 11:1
up with a little of my foolishness,
but you are already doing that…