The Jayne hat. Oh, the Jayne hat.
If you're a fan of the short-lived show Firefly, you already know what I'm talking about. If not, the shortest coherent explanation I can give is this: In one episode, Jayne Cobb, the big thug character (who secretly has a good heart) receives a hand-knitted laplander-style hat from his mother. It is brightly colored, with a pom-pom, and is fairly silly-looking and entirely inappropriate to his general demeanor -- which is what makes it perfect. Jayne loves the hat, and wears it in a climactic scene involving guns and threats of violence.
In the intervening years, the Jayne hat has become iconic for Firefly fans. "Browncoats" (Firefly fans) have been knitting the tricolor hats for about a decade. I actually own one, made for me personally as a birthday gift. You see them all over conventions; they're an instant symbol for the fanbase.
You can see where this is going. Recently, Fox, which owns the rights to Firefly, licensed a manufacturer to start selling official Jayne hats. I actually applaud that move -- why should only fans who know knitters get to show off the accessory? But, of course, it didn't stop there, and Fox (not having learned from, oh, any other decision they ever made involving the Firefly franchise) started sending cease & desist letters to online sellers of handmade Jayne hats.
Unlike most people commenting on the situation (and even most Jayne hat knitters talking about it), I actually think Fox is on pretty shaky legal ground. Despite what they would have people think, it's not at all clear that Fox has any legal right to stop people from knitting red, orange, and yellow laplanders and calling them "Jayne hats" -- and, if they can, that should give us pause. (That may be the subject of a future post, but it would take a fair bit of research to cover the topic adequately.) But let's, for the moment, suppose that they do.
There's someone in this controversy who is cutting a path even closer to the line, and even more dangerous, than Fox. It's Etsy. And it all relies on something we were never supposed to see.
On March 31, an unknown Etsy user received an e-mail from "Etsy Legal Department". The e-mail explained that a listing called "Cunning Jayne hat" had been removed from the user's Etsy shop. Etsy had been notified by Fox that the listing violated Fox's intellectual property. In accordance with its copyright policy, Etsy removed the listing.
I don't think anyone is arguing that Etsy did the wrong thing here. The Digital Millennium Copyright Act pretty clearly requires this kind of takedown-notice action. Among other things, U.S. copyright law requires websites to remove infringing material when a copyright owner gives the website notice of infringement. There are a lot of problems with the DMCA, and there is some ambiguity around the edges, but Etsy has to comply with the takedown regime to protect its business.
But the actual e-mail sent by Etsy to the shop owner contains something disturbing. Just after informing the user that the item was taken down, the e-mail goes on to say,
"This is a confidential matter, and we request that you not discuss this issue in the Etsy Forums or otherwise violate the confidential nature of this email."Wait, what? Confidential? Says who? Apparently the Etsy Legal Department.
We see these confidentiality notices all time, and their effect is questionable at best. The Lawyerist had a great post a while back about the dangers of overusing confidentiality notices in e-mail. But this one is especially disturbing, because it relates to potential action against the addressee. Make no mistake -- just because Etsy protected itself under the DMCA takedown safe harbor doesn't mean that Fox can't (and won't) sue the shop owner for copyright infringement.
Put yourself in the shoes of this shop owner. While there are certainly some lawyers who knit (though, if I know knitting fans, they might describe themselves instead as knitters who practice law), the average person doesn't understand much of anything about legal transactions. So, when this shop owner gets an e-mail from "Etsy Legal Department" stating that it's confidential, what is she* to think? A lawyer told her it was confidential. (I'm assuming here that the Etsy Legal Department is, in fact, staffed by lawyers -- something that I can only imagine the shop owner, too, would assume.)
It actually gets worse. Down at the bottom of the e-mail, Etsy Legal Department suggests a way to solve the problem:
"You may also want to directly contact the party who submitted the notice or [sic] infringement using the contact information above."Yikes! Now a lawyer isn't just telling her to keep the e-mail confidential -- a lawyer is suggesting that she contact Fox directly to discuss the alleged infringement of their copyright. It would be very, very easy for a person with no legal experience to read this e-mail and think, "Oh, the lawyers said I don't need to talk to a anyone, I just need to talk to Fox directly to clear all this up." And that gets to why this is so disturbing. They're lawyers (I assume), but not her lawyers. But the potential for confusion here is massive. At the very least, the confidentiality notice could easily be interpreted by the shop owner as discouraging her from seeking legal advice; at worst, stamping "Legal" all over a "confidential" communication which suggests a person reach out to an organization which might sue her could be confused for legal advice itself.
I don't know whether this violates any ethical rules. Perhaps more importantly, even if this is ethically free and clear, there is real moral reprehensibility here. Why are Etsy lawyers discouraging potential copyright defendants from discussing copyright claims? It can't possibly be for the shop owner's good -- the potential defendant can most likely only benefit from discussing her rights and the claim at issue with outsiders.
What is Etsy afraid of? Are they afraid of a reputation as a copyright infringement haven if people know the true number of DMCA takedowns Etsy is subject to? Are they, in turn, being bullied by Fox, told to keep this quiet to keep the spotlight off all involved? (Some lot of good that did, if it's the case.) Are they trying to limit the number of DMCA counterclaims, a costly and tiresome procedure for the hosting site? Or is it something else? Whatever the reason, Etsy owes the Jayne hat makers -- and the rest of its users -- an explanation for why its legal department is treating its users this way.
* I say "she" not because I assume that the knitter must be female, but because I'm fairly confident I've identified the seller in question. However, her name was redacted from the e-mail posted on BuzzFeed, so I won't repeat it here.
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