freecycle: TM, and R.I.P.
I’ve got a funny story for you. Here’s a preview of the punchline: freecycle, once a clever, idealistic way to prevent material from entering landfills, has been made by its leadership into a clown show.
Way back in May 2004, we did a (glowing) story on the new freecycling movement, whereby people give stuff away rather than throwing it away, via internet-based networks.
Roughly a year later, in May 2005, we did a follow-up story about freecycle’s growing pains. Freecycle founder and executive director Deron Beal had accepted corporate sponsorship, attempted to secure a trademark on the freecycle name, and started exercising what some group moderators saw as dictatorial control over regional and local freecycle networks.
In Gristmill, there was a looong and heated debate over the article. Looong. And heated.
Shortly thereafter, Grist received a letter from the freecycle media relations people, urging us in unctuous tones to always capitalize the word “freecycle,” never use such bastardized constructions as "freecycler" or "freecycling," and always use the trademark symbol when referring to the entity as a whole: The Freecycle NetworkTM. The letter deserved, and received, mockery.
But tinpot tycoons can never get enough mockery. Which brings us to the present.
Not long ago, we received a letter from freecycle’s lawyers, saying this:
We represent The Freecycle Network, Inc. in the litigation matter between The Freecycle Network and Tim Oey, pending in District Court for the District of Arizona. On May 11, 2006, the Court issued a Preliminary Injunction requiring Tim Oey to "remove all postings from the internet and any other public forums that he has previously made that disparage Freecycle’s possible trademark and logo." …
In accordance with the Order, we request that you remove Tim Oey’s postings located at http://gristmill.grist.org/story/2005/5/19/133334/517. In light of the Court’s Order, we request that you remove the posting by no later than Friday, July 14, 2006.
Seems Oey — a local freecycle moderator — was encouraging people to disregard the trademark hoo-ha and just use the word "freecycle" as a plain ol’ lower-case word.
Needless to say, we didn’t remove any comments.
Group legal blog The Volokh Conspiracy has been following this closely. (Here’s a link to all the Volokh posts on the subject on one page.) Here they introduce the case, here they note that the Ninth Circuit stayed the order, here they discuss the case as it relates to Grist, and here they mention some friend-of-the-court briefs filed by various free-speechers and intellectual-property types. This is a quote from one of them:
We cannot believe that the First Amendment tolerates such a restriction on the rights of academics, advocates, or public-minded citizens to express their opinions about the validity vel non of specific trademark claims. Trademark rights, of course, are public rights; they are granted by the people through our duly authorized representatives in the legislatures, courts, and administrative offices. Unfettered public discussion about those rights — about how law is made and applied, in the abstract and in the particular, and about whether it is or is not being made and applied (in the speaker’s opinion) correctly — lies at the very heart of the First Amendment freedom of speech. It is difficult to imagine an Order more at odds with this principle than the one issued by the district court in this case, and we respectfully urge you to overturn it.
Anyway, the Ninth Circuit stayed the ridiculous order: you, me, and all god’s children are free to discuss freecycle however we want — including discussions of whether or not it’s appropriate for Beal to copyright, and restrict the use of, the word "freecycle."
Big companies — and small, unscrupulous companies — often try to bully blogs and other websites into offering positive coverage, or at least avoiding negative coverage. Frequently such bullying comes in the form of threatening legal documents. It inevitably blows up in the face of the company doing it.
It’s one thing for profit-seeking ventures to make that mistake. It’s another for a non-profit entity, which exists purely by virtue of the good will and laudable impulses of its members, to blunder around stepping on rakes like this. It alienates the people who participate and pisses off all kinds of possible supporters.