Here's What Happened

Or

You Have All the Freedom Money Can Buy

Let me say at the outset, I have been a lifetime subscriber to C.onsumer R.eports (CR) and will continue to be, despite what I see as this unjustified/unethical bullying. They provide a very valuable service and, I'm slaved to their recommendations in areas where I have no way to personally assess a product or purchase. In such areas, I base my opinions on their opinions so, my opinions are their opinions. I'm just not allowed to tell you that anymore.

This is a classic case of using the threat of a frivolous lawsuit as an economic bludgeon to force their will on individuals who can't afford to defend their rights. I will show below that my practices are completely within my rights and the law but, keep in mind as you read this that whether I'm within my rights is completely immaterial. Whether I should, or shouldn't be doing what I'm doing, the outcome will be the same. It has nothing to do with right or wrong or the law, it has to do with extortion -- literally, "an offer I can't refuse." I must do anything and everything CR would like me to do.  I cannot afford not to.  

In about January of '98, I put up a picture (copy) of one chart from one CR article. Ms Wendy Wintman from CR emailed me, saying I was violating their copyright. I immediately removed the offending item. I tell you this to show I'm not recalcitrant about the issue. If I had thought I was violating the copyright law I would have stopped immediately.

Sprinkled through my website at the time of the above incident, and since then, have been a handful, or so, of remarks about CR's ratings. They were similar to what you'd see in newspaper articles, school papers, books or magazine articles, where small excerpts from various publications are quoted and sources/references given. Pick up any nonfiction book and, you will probably find such footnoted references. I feel funny having to defend doing what every child does when writing a term paper. This kind of thing is permitted by common practice, common sense and the fair-use exception written into the U.S. Copyright Statute. In my case, I didn't even use verbatim quotes. I paraphrased the information and, often, integrated it into sentences and paragraphs combined with information from other sources. I thought of it as giving CR credit, while at the same time telling the reader the source of the data so they could have an idea of how much confidence they should put in the information. My use also clearly and completely complied with CR's own use policy which they sent me in one of their demand e-mails.

About a year later CR's Ms Wintman started emailing me, insisting I make no reference whatsoever to their ratings. I replied, explaining I wasn't violating any aspect of their published policy on the use of their material and, asked for clarification of specifically what they were concerned about -- no response. Instead, came another demand message. I then asked how they thought the copyright law's fair-use exception applied to them -- to give me an example of something -- anything -- they thought I was allowed to say about the content of their magazine. They stonewalled. They refused to engage in any discussion -- they just kept sending unilateral e-mails containing the blunt demand that I stop referring to CR -- with steadily escalating threats.

Of course, the fair-use law does apply to them just like everybody else. Hence, because they refused to discuss it and, because there is no indication Ms Wintman has any legal training, I didn't know what to do; so, I just hung tight. I was hoping they would finally be forced to give me some explanation or legal basis for what appears to be a preposterous claim that the Federal fair-use exception simply doesn't apply to CR.

So, They Attacked the Bystander

In September '99 they turned to my ISP (www.ghg.net) and began threatening them. I'd been worried they'd do this. CR knows, rights-or-no-rights, an Internet Service Provider (ISP) doesn't want any trouble and, won't take any risk for a single customer -- they just want rid of the trouble or, legal hassle. Sure enough, the GHG manager called and summarily issued an ultimatum that I had 48 hours to remove all references to CR or, he'd throw me off the service. During a brief exchange, the character of which would take pages to describe, he made it clear he didn't care about me, my website or my rights but, changed his ultimatum from 2 to 3 1/2 working days, for me to try get CR to agree to something other than a total ban. He indicated he would not discuss it with me again. He'd talk to CR at the end of my time to see if they were happy -- if they weren't, he'd boot me off with no further contact.

My attempts to contact Ms Wintman were unsuccessful -- CR stonewalled as usual.  But, I couldn't see any hope for getting a dialog in 3 days that I hadn't been able to get in 8 months, anyway.  So, I removed my references to CR. Even so, CR might still not have been totally pleased with the way I did it and, in that case, GHG would have dumped me without further notice/contact. I didn't want the site to suddenly disappear with no link so, to satisfy GHG, I've moved it.

Catch 22 Is Alive and Well

Money making uses of copyrighted material are frowned on by the fair-use law. So; the paradox is, if I made money from my website, I might not meet the fair-use standard but, I could use the money to defend my questionable use. Because I make no money* from my website, I'm probably perfectly legal but, have no money to defend my rights. -- jim evans

Essay Defending My 'Fair-Use'

CR's Policy on Use of Their Material -- which I did not violate


* I now mention my program InfoMagic Extra, from which I make precious little, but I wasn't doing that at the time of the above events.