About a month ago, Google Inc. was the victim of some good-humoured lampooning at the hands of Peng! Collective, a German activist group, which believes in “subversive direct action, culture jamming, civil disobedience and guerrilla communications”.
What Peng did was that it created a site called ‘Google Nest’ (a spoof of ‘Nest Labs’ acquired by Google) and purported to launch four Google products, namely- Google Hug, Google Bye, Google Bee and Google Trust. These products. supposedly created by analyzing user pattern and gathering data, were unveiled at Republica (Europe’s prominent tech and innovation conference) by two Peng activists posing as Google employees; the products were touted to be Google’s response to public debate surrounding privacy and government surveillance. At the end of the presentation, the live-streaming was switched off and the joke explained to the audience; people were encouraged to spread the hoax. (Google Nest was an attempt at highlighting the privacy policies of Google, which are aimed at subjecting users to unabashed surveillance of their data and behaviour.)
When news of this spread online, Google Trademark Team sent a cease-and-desist letter to Peng; Google demanded inter alia that Peng give a written confirmation that it would transfer the Google Nest domain name to Google Inc. and also state clearly that the site Google Nest did not enjoy any affiliation with Google and was a parody site.
Peng, represented by Electronic Frontier Foundation (EFF), sent a reply to the Google Trademark Team noting that the site is a pure political commentary and is as such protected under The Lanham Act since the usage of the Google trademark by Peng is not of an economical nature.
Further, EFF in its reply stated that the use of the Google name and logo by Google Nest on its website was protected under the doctrine of ‘nominative fair use’, the doctrine particularly recognized in case of parody in Mattel, Inc. v. Walking Mountain Prods [353 F.3d 792 (9th Cir. 2003)].
Peng did comply with Google’s letter inasmuch as it revised its site google-nest.org to discuss the parody and Google’s response to it; Peng, however, refused to transfer the domain name of its hoax site to Google. You can view the revised site as it stands today here.
This is perhaps the first time that such a hoax has been played on Google and one that they definitely did not take to very kindly.
Although news of the hoax might have died down, what is worth noting is the overbearing attitude of companies like Google which resort to trademark/copyright law in order to disrupt efforts of public-spirited people who question their ideology.
Recently, a group of students from Evergreen State College wrote and produced a play called ‘O.U.T.: Once Upon a Time’ which they were to perform in college as part of Quisney Project; the play was a queer musical which involved parodic use of Disney songs in order to criticize Disney which, in their view, perpetrates gender stereotypes in its movies.
The college administration at Evergreen State College, though initially supportive of the play, cancelled the performance of the play on the ground that it raised copyright concerns. Washington Lawyers for the Arts (WLA) (which is advising the students at Evergreen) in an open letter has detailed how the play falls in the fair-use exception of copyright law.
In my opinion, both Google Nest and the Quisney Project are works protected under the fair-use provision and it is unfortunate that works which seek to make a social impact through creative use of satire are often clamped down by using copyright/trademark law.
Google’s reaction to the Peng affair was dismal; losing its sense of humor is a very unfortunate path for Google to tread – certainly not aligned with its supposed ‘do no evil’ catchline, given that it’s also in the midst of all these privacy concerns. (Read about EU’s recent ruling on ‘right to be forgotten’ here).
I believe that parodies which are socially and politically relevant are afforded little protection in general. In India, it is easy to banish a work of satire from the public domain on ground that it offends religious sentiments or is defamatory or is intended to provoke breach of national peace. The tolerance threshold in our country is evidently low- in 2012, the Government announced the removal of cartoons of politicians from NCERT textbooks saying that it “poisoned the student mind.”
We need to remind ourselves that IP laws were intended at protecting creativity and not stifling it and IP should never be used as an instrument to gag works which comment on matters of social importance.
[On a related note, we would like to inform our readers that ‘Internet’s Own Boy’ (the award winning documentary on the life of late internet activist, Aaron Swartz) is releasing on June, 27th and is now available to pre-order as a Creative Commons- licensed video download.]