Legal Issues
Legal considerations for Sucks Sites. There are a great many considerations to setting up and running a Sucks site, not the least of which are legal in nature. it's very important to stick to the truth at all times. Truth is your best protection against suit. As long as you have something to say and do it in a manner that does not confuse the site user you should be protected by the First Amendment and Fair Use conventions.
Be very clear with your message. If a Sucks site uses a company's trademark for the non-commercial purpose of criticism, it does not violate trademark law so long as consumers are not being confused or tricked into trusting that the site is sponsored by or somehow affiliated with the company being criticized.
The First Amendment to the Constitution gives you the right to claim “Wal Mart Sucks”, and just because Wal Mart’s name is a registered trademark doesn't mean Wal Mart has any rights to prevent people from saying “Wal Mart Sucks”. There is no Sucks site user confusion if the consumer is fully aware that they are visiting a criticism site.
It has to be very clear that you are not the company being criticized.
The word ‘sucks’ or some variation should appear in the domain name if at all possible. This becomes more important if the URL you want uses a company's trademark, such as toyotasucks.com.
Also, no matter how clear and obvious a site may be in its intentions, trademark owners may file a lawsuit using a trademark dilution theory that an internet site ‘tarnishes’ a trademark by linking it to negative behavior such as sexual promiscuity or drug use. Do not use any content that is not true and you will steer clear of this minefield. Don't make things up about people, places or things.
The concept of Fair Use. As in the case of trademarks, copyrights do not grant authors or companies absolute ownership over their copyrighted material. The concept of fair use allows the public to make limited use of legally copyrighted works.
A copyright doesn't mean that anyone can control every use of copyrighted material. Congress created the fair use doctrine in the Copyright Act of 1976. Within the act, the word ‘criticism’ is the first in a short list of uses that Congress specifically stated to be fair. Fair use has traditionally been used for things such as commentary and opinion editorials.
You may want to note that any routine reproduction of copyrighted works, even if for fair use purposes, is frowned upon by the courts. Any copyrighted work should be altered from the original state into something new that is still somehow related to the original copyrighted work.
For example, if you want to use an image file from Company X you should edit it with an image editor and alter it in some way before posting it or displaying it anywhere.
Using Humor and Parody. Parody is another place where fair use provisions provide protections to Sucks site owners. The key to parody is to transform the fundamental copyrighted material and use it in a way that highlights the copyrighted material without appearing to be affiliated with the copyrighted material or its legal owner. There is a fine line.
Also, you can’t use R2D2 and C3P0 to parody the dry cleaner that ruined your suit. A parody must relate to the item, person or work being parodied. You can use R2D2 and C3P0 to parody Star Wars. You can use a picture of your dry cleaner or the dry cleaning establishment, images from their print or broadcast advertising, etc., to parody your dry cleaner.
The Digital Millenium Copyright Act (DMCA). If you run a Sucks site and allow others to post content, the Digital Millennium Copyright Act provides limitations regarding liability for Internet Service Providers and other entities which do not control content posted by Sucks site users.
Some of the more basic protections for the Sucks site owner are gained by following a few simple requirements; maintain a registered copyright agent, include a Terms of Use policy which forbids copyright infringement and defamation, and to have a procedure for removing offending materials upon proper notice.
Truth is Constitutionally Protected Speech. The law allows for the exercise of free speech free from interference by trademark and copyright laws. The law also creates a boundary of protection for free speech. Defamation, which is the proliferation of false information which harms the reputation of another, is outside of this protected boundary and actionable in a court of law.
If you are going to put up a Sucks site, you must ensure the content it contains is true and non-defamatory. But don’t confuse defamatory statements with opinions.
If you do not claim something that is verifiable as true or false , for example that Company X Sucks, it is not defamatory in nature due to the fact that no one can prove either the trueness or falseness of your claim. There is no scientific method for measuring the amount of Suck contained within a given individual or object. Claims which cannot be proven one way or the other are considered opinions, and cannot be defamatory.
Opinions are protected free speech. Defamatory statements are not protected free speech.
Truth is constitutionally protected free speech and is not restricted in any way by law.
The Communications Decency Act. The Communications Decency Act provides some protections against a Sucks site owner being held liable for posting messages written by third parties.
If a Sucks site owner or an Internet Service Provider provides a forum for public use and they do not make it their policy to edit the content, you are very likely covered by the provisions of the CDA.
Anyone who sets up a website hosted by a third party needs to expressly disclaim any control over postings on the website, while simultaneously reserving the right to remove offensive postings, while further providing contact information for concerned site visitors to inquire about postings they may find offensive.
The optimal situation is for the Sucks site owner to also own the servers providing the content to the internet, as this gives you broader protections under the CDA due to specific wording within the act.
Risks of Running a Sucks Site. Even if your Sucks site avoids having a confusing site and copying infringing material, the risks of running your sites is still significant. Some companies may use their resources to harass you, enlist hackers to disrupt your servers, have their attorney’s send a litany of warning letters or file frivolous litigation.
Do not use copyrighted materials more than fair use allows and stay away from possibly defamatory content.
The danger of a lawsuit always exists. Even if a webmaster is ensuring fair use of copyrighted materials, in America anyone can sue anybody over anything. You could say frivolous lawsuits are an American tradition.
Chances are, if you are sued and you followed the above guidelines, you’ll win and they will get to pay your legal fees in addition to losing.
Remember first and foremost, the truth, the whole truth, and nothing but the truth.
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