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Backwash's Response, followed by a reprint of the letter from Starbucks' attorneys: On March 23, 2002 Backwash received a cease and desist letter from lawyers representing Starbucks. In this letter Starbucks' lawyers claim Backwash's policy of displaying a link to Starbucks' website in a Backwash frame violates Starbucks' rights under trademark law. They ask that Backwash immediately cease and desist by removing any link to Starbucks. Backwash is a community of writers who identify and recommend their favorite content to their audience. These recommendations are delivered to our visitors via numerous methods - from our writers' columns to targeted newsletters to topic specific channels to personalized recommendations. Our recommended links are seen by hundreds of thousands of readers who look to Backwash as a source for finding interesting and relevant content that appeals to their individual tastes. Backwash uses a launch frame for a reason. In our launch frame, we provide tools allowing our visitors to forward links to content to friends, to access a discussion board devoted to the linked content, to report a broken link, and to rate the content on a scale of 1 to 5. The average rating a link receives significantly affects who and how many people see the link after it has received a certain number of initial hits. Our launch frame not only enhances our service, but also helps the content providers we link to by allowing our visitors to easily forward the links on and to discuss them and become more engaged in the content. We have deliberately programmed our site so that if a link is not rated by at least one individual, it quickly dies. We do this to encourage sites to allow frames or at least allow our frame to work on their site for the reasons outlined above. Any webmaster worth his or her salt knows that they can easily block launch frames with the addition of a tiny piece of code. Starbucks too has the option of adding simple code to their web site to prevent framing. Either Starbucks is unaware of this or else they prefer wasting thousands of dollars having their lawyers send out cease and desist letters. Or else, they are trying to set legal precedent. It is Backwash's contention that the application of the case Kelly v. Arriba to Backwash's use of a launch frame is a complete misreading of the decision by Starbucks' attorneys. Launch frames are entirely different from the framing device used by ditto.com, which the court found to violate the rights of the copyright holder. This threatened legal action by Starbucks is disappointing on several counts. First, they did not make any attempt to contact Backwash prior to issuing this letter. Had they emailed or called us, we would have gladly removed the link, as it is our policy not to link to sites which do not wish to be linked to. More importantly, we believe Starbucks to be a hypocrite who drapes itself around its target market of artists, the internet community, and left-wing politics on one hand, while the other hand uses Gestapo tactics to squelch free speech and needlessly harass the honest, decent, hard-working people in the world - reference their lawsuit against Kieron Dwyer or do a search on Google of the terms "I Hate Starbucks" for additional examples. In spite of our outrage at receiving this letter, Backwash has removed the link to Starbucks at their request. We did this for several reasons. First, we believe that webmasters have the right to request certain sites don't link to them. We do not, however, believe it is a legal right to which those sites must abide. Nevertheless, it is our policy to try to abide by other people's wishes out of courtesy. Second, because the sites we link to benefit from our recommendations, we do not wish to bestow a benefit to sites which are so unappreciative. Finally, we are a tiny company and not in a position to stage a legal fight with a giant corporation. A battle of this sort is better waged by other affected large companies who have more resources than we do, or else the ACLU. Other companies using frames include About, Lycos and Google, among many others. How dare Starbucks profit from a free and open democratic society and then use their profits to, in our opinion, undermine those very freedoms of speech that make us an open society in the first place. There is a key connection between KPMG threatening lawsuits against individuals in regards to simple links and Starbucks threatening a lawsuit about a link appearing in a launch frame. While an outright link affects EVERY webmaster and on the surface, the use of a frame affects only a small number of webmasters, the issue is the same -- that these giant organizations, from Starbucks to KPMG to the Church of Scientology, are trying to set legal precedent by slowly chipping away at the rights of self-expression of people on the Internet. Whether it be a simple link or a launch frame, both are about limiting rights of speech, which if upheld by the courts, can then be used as precedent for further eroding our rights. Today a link to their site, tomorrow links to sites that criticize them, next week to anyone who says something to which they disapprove. Boycott Starbucks. Exercise your beliefs with your pocketbook. Support a local coffee shop. Show Starbucks that their actions have repercussions on their bottom line.
Sincerely, References: Starbucks lawsuit against Comic Book Artist Kieron Dwyer Kelly v. Arriba - the court's recent decision KPMG threatens bloggers for linking to them - an article from Wired News Click for Letter from Starbucks' Attorneys
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