Both images reproduced here with the permission of Zaphod, their creator.


Jason, I would prefer if you let the issue die quietly. However, I am OK with you hosting the graphics here since it’s to help free speech on the Internet, something which, as you know, I support.

• Posted by: Dave Winer on May 7, 2000, 1:25 PM

Hi Jason,

Thanks for doing your part for free speech on the Internet. We need more people like you.


• Posted by: Jim Roepcke on May 7, 2000, 1:26 PM

I’m happy to let parts of the issue die, but as you can tell, I really don’t like a few things that have come out of this all:

  • You used your power and notoriety to rip into Conxion for exercising their right to cut your access off after you made them look silly, even roping others (Dan Gillmor, InfoWorld) into echoing those concerns. Then, you turn and exercise the same power against someone else that’s smaller and doesn’t have the same notoriety or access to the media; that’s just not fair play.
  • You claimed that the difference between the two situations was that you pay Conxion whereas the ETP sites are free, yet you have used EditThisPage and as big advertisements for Frontier and Manila, a compensation not dissimilar to how Conxion takes (took) your money for service. If you entice people into using ETP and, you have to accept that you get a lot from that arrangement — free beta testers, free eyeballs that lead to feature requests that benefit Userland directly, and your domain name plastered all over the net. And accepting that, you have to understand that the relationship between these users and you is similar to your relationship to your ISP, and thus treat the users as you demand that your ISP treat you.
  • Manily, it upsets me that now people are going to be highly suspect of ETP and, which is in nobody’s interest. There’s a great brand here, and a great product, and evangelizing it shouldn’t be something that I think twice about, since it clearly is something I use and love on an hourly basis.
• Posted by: Jason Levine on May 7, 2000, 1:41 PM

Lesbians and white people get enough free press already. You should sport pictures of clowns shooting small children with water pistols or something. Be creative. Do unholy things to holy relics. See how far that gets you.

It’s the thought that counts. Your heart’s in the right place.

Thousands of years from now your sacrifice will be passed down from generation to generation in the form of chant and song before a campfire. Unfortunately they will get your tales mixed up with some guy named Grendel, and he’ll get all the credit for your effort. So you will not live eternal in the hearts of your descendants.

I think Winer should just let us eat cake.

• Posted by: Zach Garland on May 7, 2000, 1:44 PM

OK, Jason, since you’ve taken a strong position on this, where is the line? What is permissible? Who is more valuable to the community, a graphic designer who lets people use his graphics freely, or a person who defaces those graphics with slurs, without permission? That’s the decision that landed on your desk. You get to play CEO now. What do you do?

• Posted by: Dave Winer on May 7, 2000, 1:45 PM

Why not eat cake??

• Posted by: Dave Winer on May 7, 2000, 1:53 PM

Both are equally valuable, in the grand scheme of things.

One is valuable for his or her graphic contributions, the other is valuable for his or her reminders about the basic rights to free speech, parody, fair use, and enforcement thereof.

And this comes full-circle to my original argument: you and I obviously agree that the people responsible for the Elian Wazzup parody are as valuable to the world as the Associated Press is, for these same reasons.

As the strong sentiment that Voltaire was quoted to say (but never did) goes: “I detest what you say, but I will defend to the death your right to say it.”

And as for playing CEO — I purposely have chosen not to get into that role.

• Posted by: Jason Levine on May 7, 2000, 2:05 PM

Yes, Jason, nice, but if you were in my shoes you’d have to make a choice. Perhaps you could factor that into your criticism.

• Posted by: Dave Winer on May 7, 2000, 2:39 PM

Jason qwertied:
> And as for playing CEO — I purposely have chosen not to get into
> that role.

I’ll do it. I already did. Ask me the questions bridge keeper, I’m not afraid.

Real simple Mr. Winer. Let him use the graphics. Let him say what he wants. Let anyone say anything they want on your servers.

Get your Spin Doctors and Volunteer Publicists to turn everything said by your detractors on its ear, and push the fact that anyone can say anything they want at and here’s proof.

Encourage people to criticize you. Hold contests. Make a game out of it. Have fun with it.

If you really can’t stand it and must have revenge, let the courts decide it fairly. Save the scoffers’ worst threats and accusatiions and find a lawyer. See if you have legal grounds to protect the copyright of the graphics, or insist on monetary compensation for damages to your company’s reputation.

If it will cost more money to defend than you can afford, it’s not worth it. However if you play your cards right and file for court action, you can milk it for all it’s worth with the press and get some free publicity out of it. You should be able to retract at a later time, unless bonehead calls your bluff.

I hope you won’t go that far though. If everyone started suing everyone for everything said online, there’d be nothing left to read or respond to.

Who was it that once suggested, “kill all the lawyers”? That day may be coming sooner than we think. In a world where someone can sue McDonalds for serving hot coffee, the entire society is both trigger happy and shell shocked.

• Posted by: Zach Garland on May 7, 2000, 2:45 PM

The Queen of France said:
> Why not eat cake??

Uhm… dude. You’re the one with the server. You’re the one dishing out the cake. Or choosing who gets cake and who doesn’t. You’re the one deciding who gets ‘free speech’ and who in your opinion has just ‘gone too far.’


I hate having to explain my obscure metaphors. Makes me feel like Dennis Miller.

• Posted by: Zach Garland on May 7, 2000, 2:52 PM

“Who was it that once suggested, “kill all the lawyers”? “

Shakespeare. King Henry VI, Part 2.
Act 4, Scene 2.

“The first thing we do, let’s kill all the lawyers. “

• Posted by: Alwin Hawkins on May 7, 2000, 3:54 PM

OK, I was trawling around the remains of this thread, and noticed your copyright statement:

How you reconcile your behavior with your own policy?

Did you ask us for permission to use those graphics? Did you ask Garret Vreeland? Did you ask the Winerlog guy?

Hmmmm. I think I stumped the master!

• Posted by: Dave Winer on May 7, 2000, 9:04 PM

No, Dave, I never claim in my copyright statement to remove the rights that people inherently have, and that I have no ability to alter — parody and fair use. So that handles asking for permission from you or Garrett — the images are parodies of his/yours (I have no idea at this point who the originals “belong” to).

As for Zaphod, I have asked for permission, and if he replies that it’s denied, then I will happily remove them.

And as for the “master” comment, I never claimed to be the master of anything involved here, just someone with an opinion. In addition, you frequently rail on people who respond to things you say, screaming that they are reading things into your statements that aren’t there, or that are projections of their own feelings; I have a good suspicion that your “stumped the master” comment falls squarely among that category. If someone ended their comment with that in response to a post of yours, you’d flip.

Oh, and lastly — can you point to a single place on the web that gave anyone, including yourself, explicit permission to mirror the Elian Wazzup parody? Probably not, since apparently there isn’t such a place; people just started mirroring it in response to the heavyhanded tactics of the AP. Of course, if you have personal correspondence to the contrary, then that’s another thing; I have no idea if you do.

• Posted by: Jason Levine on May 7, 2000, 9:25 PM

Your suspicion is wrong. It’s a reference to a thread with Wes Felter where I said that, and he set me straight, and it went the other way, he had stumped me. (On the UserLand DG of all places.) And Wes didn’t flip, and I didn’t flip and I didn’t scream, and I don’t usually scream.

So let’s figure this out. According to you, Grohol didn’t need permission to steal our art because it was fair use.

So it seems to me that your copyright statement is useless. Anyone can do anything they want with your Q logo or your pictures as long as they are slightly altered in a creative way.

BTW, why did you ask Grohol for permission?

Now let’s go one step further, I assume you’re willing to host those sites as well? In other words anyone who takes your art and changes it slightly may have space on to display that, along with other opinions they may have about you, your age, your sexuality, etc.

And if Grohol fails to give you permission to use his stuff, you will take it down, but if we ask Grohol to take it down, I’m a hypocrite.

I’m very confused!

• Posted by: Dave Winer on May 7, 2000, 9:30 PM

• Posted by: Dave Winer on May 7, 2000, 10:18 PM

A pretty tenuous parody, but boys will be boys.

(Again, though, let’s stick with the legal distinction that’s important here. You posted this on my site — so if I wanted to take it down for some reason, I could and would, just like you can and will take down anything you damn well want from your sites.)


• Posted by: Jason Levine on May 7, 2000, 10:24 PM

Let’s take these one at a time.

Fair use and my copyright statement

Yes, Grohol can modify “your” art (again, whose is it?) so long as the end product meets the standards set forth by fair use and parody laws. I’m not going to go into those here; suffice it to say that I feel that his meets these standards, and if I’m wrong, then I’m wrong.

No, I don’t feel my copyright statement is useless — it merely prevents people from attributing my specific words or art (or, in the legal language, “creative works”) to themselves. (An example of this: Brent Mussberger, sportscaster, claiming that he originated the saying “It ain’t over ‘til the fat lady sings,” when in fact, he heard San Antonio sportscaster Dan Cook say it in a locally-broadcast game, and then took it for use on his next national game. Mussberger lost the lawsuit, and ended up settling for an undisclosed and supposedly large sum of money.) If, on the other hand, someone’s use fits under the aforementioned definitions of fair use, etc., then no statement I can make here changes the fact that their use is legal.

Again, Dave, don’t obfuscate here — I’m not writing or changing law. You know damn well that copyright statements have purpose (and in fact, they have much less purpose than most people think, since copyright is automatically attached to creative works whether or not they’re marked with a copyright notice.). You also know that that purpose can’t controvert the various exceptions to copyright that exist. My contention, and the contention of the WinerLog folks, and your contention in the Elian Wazzup parody, is that this all fits under those exceptions. If you disagree so strongly, sue the WinerLog people, and let a judge decide. But don’t make furious hand gestures at me; I don’t make those decisions.

Me asking Zaphod for permission

I asked because I am not parodying him, I’m mirroring his images, and as such, my arguments for all the aforementioned exceptions are weaker.

Again, though, I ask: did you ask permission from Chris Lathrop or Sean Bonner to put the Elian Wazzup parody on your site? Or did you do it because you believed that it represented a higher purpose?

Difference between me taking the images down in response to Zaphod and you asking him to take them down

Again, I return to the fact that the images on his site are his creative works, not yours, whereas the images on my site are not my creative works, they’re his. It’s a major legal distinction. It’s the same thing as Jason Kottke’s “Simply Porn” parody — the images are his creative works, based on and a parody of the works others.

You asking him to take his pictures down from a site hosted by you is legal only because it’s legally your site, not his; you demanding that the images have to come down because they’re your property, on the other hand, is untrue.

Now, the flip side. Zaphod asking me to take his pictures down off of my site is legal — they’re his, and I just put them up under the assumption that he would be OK with it; I followed up by asking. If he says no — if my assumption is wrong — then I’ll have egg on my face, I’ll take them down, and that will be that.

My willingness to host the sites

Where do you get this from? Just because you opened this can of worms on your servers, and then others have opinions of the aftermath therein, doesn’t equate with those people also wanting to open the same can of worms.

But, more importantly, to be clear — I have never argued that you don’t have the right to take down anything you damn well please on your own servers. You have that right, absolutely, and unquestionably. My points are two: first, that you doing so stands in stark contrast to the bellowing ex-customer of Conxion that lambasted them for cutting you off, and second, no matter how firm your beliefs, you have tenuous legal standing in your attacks of images in and of themselves, I believe that they sit within the exceptions to the copyright rules.

• Posted by: Jason Levine on May 7, 2000, 10:24 PM

Is it fair use or not?

• Posted by: Dave Winer on May 7, 2000, 10:38 PM

My gut feeling is yes, but that being said, I have no idea if I’m legally correct. My reading of the Supreme Court decision in Campbell v. Acuff-Rose Music, Inc., and the cases cited therein that I can get to on the web, is that there are very specific meanings to the terms “satire” and “parody” and their applications to copyright and fair use. One of the rules applied by those meanings is that the work can’t be just a compilation of other works (as this image is); for example, I can’t take five images of Clinton from the White House website, put them into a montage, and claim it as a fair use original work, nor can I take snippets from a few songs or lyrics from a few artists, combine them, and claim it as my own. Hence my hedging — I have no idea where the proverbial line is that the Courts and the court have drawn.

So, if you want my legal opinion — I have none, I’m not a lawyer.


• Posted by: Jason Levine on May 7, 2000, 11:04 PM

My gut feeling is yes, but that being said, I have no idea if I’m legally correct.

So how can you be so sure about what the Winerlog guy did?

Perhaps you want to re-examine your own actions?

If so, I believe you would be doing great good for the Internet.

We must have boundaries, and we must also have free expression.

What are the boundaries?

• Posted by: Dave Winer on May 7, 2000, 11:06 PM

Oh, come now — I would think that someone so well-versed as you are at scolding people for putting words into your mouth wouldn’t go and do it to somone else.

I have specifically never said that I’m sure that his works are fair use, parodies, satires, whatever; instead, I have clearly said that “I feel that his meets these standards, and if I’m wrong, I’m wrong.”

No, I don’t want to re-examine my actions. Have you pulled down the Elian Wazzup page yet? Not that I think you should — likewise, you shouldn’t re-examine your actions, since they too are in the same spirit of promoting the ideals behind free expression.

The boundaries are whatever the law says they are; my actions are based on my educated perception of the current state of these boundaries.

P.S.: I just spoke with my best friend on this planet of ours, a lesbian, who finds your response to this hilarious. Not that her opinion should matter to you in the least, but she’s not offended at all; instead, she’s mildly put off by the fact that you’re comparing this issue at all to the real fights that she and other gay people have to face daily.

• Posted by: Jason Levine on May 7, 2000, 11:49 PM

OK, but now it appears you’re the one doing the scolding.

• Posted by: Dave Winer on May 7, 2000, 11:52 PM

P.S.: I just spoke with my best friend on this planet of ours, a lesbian, who finds your response to this hilarious. Not that her opinion should matter to you in the least, but she’s not offended at all; instead, she’s mildly put off by the fact that you’re comparing this issue at all to the real fights that she and other gay people have to face daily.

That’s cool, but maybe you introduced it to her, maybe she knew what was coming. I’ve heard from others that don’t understand the context and don’t like being called Dykes and want to know why I’m paying money to host that site. (BTW, bandwidth on the level we consume it costs quite a bit of money.)

I had hoped to reach your inner goodness here Jason. Maybe in a few years. I’d like you to go back and read the adjectives you use for me, and imagine that someone used those words to describe you. You make all this stuff so personal, and I don’t like that.

The truth is, until this evening I didn’t even know what you look like. It totally changes my perception of who you are. I had quite a different image. Now allow for the possibility that you are doing the same with me. Hearing tones and motives that simply aren’t there, and missing experiences that I have had, and conversations I have had with others, about this very subject. I wasn’t invented the day you first went to Scripting News, I’ve been doing online communication since the mid-70s.

Your line of argument is familiar to me. Someday this DG might be a high traffic one like mine is, and you will I’m sure then experience many if not all of the same kind of bitterness that you give to me. Take a look at it, because it’s yours Jason, not mine.

• Posted by: Dave Winer on May 8, 2000, 12:00 AM

Common sense tells us that the winerlog guy is doing a parody.

Common sense also tells us that the “Dyke” and “Whitey” pictures are part of that parody.

However, the law has the basic tests for “Fair Use” as follows.

From the Copyright site

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

1. The purpose is obviously to make fun of Dave Winer. It also has no commercial value(though courts have held this isn’t a necessary requirement.)

2. The nature of the work is basicly, as someone on Flounder stated, a parody or a rip-off of an Ike for president campaign button.


is as different from

as your original picture is from

this one. Userland’s own Pike button was a parody of the Ike button, that was the effect you were going for.

4. Your Pike image has no market value in and of itself. It is not a trademark.

So yes Dave. The Pike image, and to a different degree the Whitey image are both clear examples of parody covered by Fair Use.

• Posted by: William Crim on May 8, 2000, 12:03 AM

Wait a minute, we’re having a different conversation.

I want Jason to get an idea of what it feels like to have his imagery used in a “fair” way.$438

Please consider whether or not that is fair use.


• Posted by: Dave Winer on May 8, 2000, 12:05 AM

According to the tests I gave in the previous post, yes.

It fufills all the requirements.

However, each case of Fair Use must be tested in court. Since it is a subjective thing. Judges will summarily rule on common stuff, like educational, reporting, etc. But nothing ever TECHNICALLY falls under “Fair Use” unless it has been tested in court. (or pre-defined in law, such as making VCR copies of TV programs)

How you or he feels about these pictures has no bearing on if they are or are not “Fair Use” modifications.

• Posted by: William Crim on May 8, 2000, 12:22 AM

My guess is no - its not fair use. It lacks parody or comedic value of any kind. More to the point - it doesn’t say anything - its just a very boring collage. But I see where you’re trying to go with that.

To be honest, I find your reaction to this to be somewhat hipocritical. You advocate spreading the images of the elian parody around the web to fight the big bad ap, and I’ve seen you rejoice in things like a photo of a vandalized MS billboard with the finger from the cursor icon moved to the middle position and proclaiming it web energy in action.

Yet you characterize the altered graphics from your sight as being “defaced” and cry foul. The billboard was defaced, the graphics are not. Nobody has deprived you of their original renditions. They are just parodied. You are not alone in being parodied. It happens all over the web.

Here are two examples that could be considered actual parody.

There are lots of others.

The meat of the loom site actually was threatened, fought for their right to parody, and won.

So I think you can’t have it both ways. You can’t advocate “free speech on the internet” by spreading parodies around and then complain when you yourself become a subject of one of these parodies. If you’re going to dish (and I’ve seen you dish), you have to take it.

• Posted by: Todd Blanchard on May 8, 2000, 12:23 AM

Update: note the added text on the double-image page, as well as on each of the individual pages — we have official permission from Zaphod to reproduce the images.

• Posted by: Jason Levine on May 8, 2000, 12:24 AM

Dave, whereas I can’t speak for my past right now — mainly because right now I’m not in a position to review everything on your sites and my email and wherever else our past has played out — I can honestly say that there have been *no* ad hominems in this exchange whatsoever. In rereading my words on this thread, the strongest personal statement I made was either on the home page with the “situational ethics” comment or with the words-in-my-mouth statement, neither of which are personal. (And from what I remember of the past, things have flown both ways.)

Right now, my inner goodness is focused on just letting Zaphod know that even though I don’t find the buttons funny or tasteful, I agree with his right to produce them. A few weeks ago, on the Elian thing, I was accused (by someone who I once thought to be a friend) of blithely sitting back and allowing our government chip away at our freedoms; I would like to think that this is a response to that, at least in spirit.

And lastly, if I can ask one thing. Please don’t keep bringing into the argument anything like the fact that you shouldn’t be forced to host WinerLog or any other site you object to, or that it costs a lot to do so, or that friends of yours are wondering why you host it — we agree on the point that you can explicitly choose what to and not to host, I don’t know how many times I have to reiterate that. This is the very reason I disclaimed my response to the picture you posted here tonight — just like sites are yours, this is mine, and if I end up not wanting the picture here for some reason, then that’s that.

• Posted by: Jason Levine on May 8, 2000, 12:25 AM

Another great example: Jason Kottke’s “Simply Porn” spoofs/parodies/whatever of the “Simply Palm” ad series.

Jason’s original site (an OSIL8 episode) is here, but it’s just a notice of Palm’s cease-and-desist request. It’s mirrored in a few places, though, most notably at peterme.

• Posted by: Jason Levine on May 8, 2000, 12:28 AM

Wow! There were lots of ad hominems. The word that really sticks is “scolding”. There were lots of others, but at my advanced age Alzheimer’s is a serious concern, so I don’t remember them all. ;->

Please re-read your last paragraph, it’s certainly scolding, and bordering on censorship. Are you telling me what not to say in your DG? Funny now that the shoe is on the other foot, you’re a lot more sensitive.

If you keep running this DG I’m going to enjoy the vetting process as you learn what demands mere readers of your site can make on you.

• Posted by: Dave Winer on May 8, 2000, 1:05 AM

Who is Zaphod by the way? That’s not a real person, I assume. How can a non-person grant permission? Just curious. (Is he really from Alabama?)

• Posted by: Dave Winer on May 8, 2000, 1:08 AM

I beg to differ. My image was not a parody it was a political statement, a sarcastic cry against the oppression of Jason Levine. It is High Art! I think might even win an award.

All he wanted was to put a picture of a Dyke button on his website.

He is truly offended. Aroused to action.

Busily thinking of places he can put the Dyke button to Make His Point.

Communicating with Zaphod in his basement control room.

Plotting to take over the world while no one is watching.

Conferring on the phone with his lesbian friend.

“My best friend on this planet of ours”

It tells a story that history demands be told.

Jason in the Middle..

Watch him..


• Posted by: Dave Winer on May 8, 2000, 1:28 AM

or perceived lack thereof I guess. If you like well, you like it. Anyhow, I had hoped to give you a little insight into what other people on both sides are seeing out there. The letters/legal exchanges on meat of the loom are interesting as a case study anyhow.

Just to do a little more for freedom on the web:

• Posted by: Todd Blanchard on May 8, 2000, 1:52 AM

Scolding is an action, not an ad hominem.

Please re-read your last paragraph, it’s certainly scolding, and bordering on censorship. Are you telling me what not to say in your DG? Funny now that the shoe is on the other foot, you’re a lot more sensitive.

His last paragraph is telling you to stop arguing points which you both agree on. Asking someone to not say something they have already said before is different than censoring.

Maybe you are just getting a chuckle thinking, “Boy I showed him.” This whole “Fair Use” thread seems to boil down to that.

What are YOU trying to do Dave? The bulk of public opinion(that being opinions that have been stated in public) in various forums is almost unanimous in support of your RIGHT to do what you want with your sites(WinerLog in particular). It is also almost unanimous that people think it still was a BAD call on your part to call for their removal. What are you trying to accomplish?

• Posted by: William Crim on May 8, 2000, 1:53 AM

Maybe I’m seeing the sense of what they’re saying.

Please understand that there are other people you’re not hearing from on Flounder and here, that make a much larger contribution to the kind of content we want on ETP, for whom the Dyke stuff crossed the line. Jason didn’t want to consider that I had to make a choice, it was basically either Winerlog or some other people. Up to a point I could defend what he was doing, but when he pointed the finger at us for modifying content on his site, that’s when I lost interest in standing up for him.

I’m willing to back down all the way and let Zaphod put the images back on his site. I feel I’ve made my point, taken enough heat for it. The people who I really care about know that I do, and maybe I can get some help in drafting a set of integrity guidelines for hosting services and people who use those services that take me out of the hotseat which I find quite uncomfortable.

You ask what I want to do. I want to create a million web sites, with 10,000 sites doing great writing and journalism, covering the world from all angles, and doing it from the point of view of users, not reviewers. I’ve written about this at length in DaveNet. I really mean it.

And to make it work we have to go through these issues, hopefully not over and over.

• Posted by: Dave Winer on May 8, 2000, 2:07 AM
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