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FedEx Cracks Down on Box Furniture, Citing DMCA 778

nospmiS remoH writes "Wired is running an article about a guy with no money making furniture out of FedEx boxes. If that weren't strange enough, FedEx is going after him, legally citing the DMCA. Yes, the DMCA. Apparently they are not upset about the furniture itself but rather this site that he put up with pictures of his creations (pretty good work really). My favorite quote from the article, '...Avila clearly intended to operate a business from his website because he used the .com domain suffix, the "commercial level domain," rather than .net.' You just can't make this stuff up."
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FedEx Cracks Down on Box Furniture, Citing DMCA

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  • by DogcowX ( 888899 ) on Thursday August 11, 2005 @01:21PM (#13295955)
    It's free publicity for FexEx. And now, it's all negative!
  • by The I Shing ( 700142 ) * on Thursday August 11, 2005 @01:21PM (#13295960) Journal
    I think fellow used fedex.com to order a whole lot of boxes with no intention of using them to actually ship stuff in. It's a bit like someone taking an enormous number of ketchup packets from a Burger King in order to have ketchup in his house, rather than using them on the fries he didn't buy there. So I can see why FedEx would take umbrage at his using the boxes they're paying for to make furniture, and then turning around and showing everyone in the world how what a bunch of suckers FedEx is for giving boxes away for free.
  • by Tepshen ( 851674 ) on Thursday August 11, 2005 @01:23PM (#13295990)
    IANAL but after looking at the website it strikes me that on this scale the effort and pictures can almost be considered artistic. this guy did some very creative stuff with those boxes and I'm pretty impressed with the results. It seems pretty draconian even for DMCA to stifle this kind of work.
  • by fishbowl ( 7759 ) on Thursday August 11, 2005 @01:24PM (#13296001)
    Just because some lawyer writes you a letter doesn't mean you have to do anything asked. If that were the case, there would be pure anarchy.

    A judgement, which generally comes after a hearing, is another matter.

    There's no way they'd win any claim of damages, period. They might be able to persuade a network provider to remove a site, but that's only because the customer usually has signed a contract with the provider that waives any right to damages resulting from a site being taken down, not because lawyers get to make law merely by writing letters to people.

    If he's violating copyright and trademark law, then why can't Ford sue me for driving a Ford with Ford trademarks all over it? If I put a picture of my Ford on the the web, can they take down my site?

    Precisely how is this different?
  • by doublem ( 118724 ) on Thursday August 11, 2005 @01:24PM (#13296002) Homepage Journal
    Here's the real deal. FedEx doesn't want to be providing thousands to millions of boxes to people who won't be paying to use them to ship items via FedEx.

    The lawsuit is probably not expected to succeed, but to pressure the web site owner into closing up shop. If he doesn't have the cash for proper furniture, then he won't have the cash for lawyers.

    For FedEx, "winning" consists of getting the site of the Internet. The legal battle is a means to an end.

    Of course the result of all this is I'll be pressuring our shipping department to use UPS instead.
  • by ConceptJunkie ( 24823 ) on Thursday August 11, 2005 @01:29PM (#13296058) Homepage Journal
    I tell ya, we are rapidly approaching a time when anyone with money and power can attack anyone else, for any reason, under the guise of some byzantine law that no one understands, or agrees with, even the people who passed it.

    In many countries like Brazil, it's completely impossible to run a business and abide by the labyrinthe of complicated and conflicting laws. Is this the kind of country we want in the U.S.?

    Now, it's possible that FedEx has a case that this guy is abusing their trademark with the appropriately colored "Fed Ex" text on his site, but I can't see how he is harming them and the fact that they would... and could... cite the DMCA is just frightening. Is there no sense of perspective among these huge companies? All the guy is saying is that they make good boxes, but now they will generate not a small amount of bad will.

    Now if the guy was selling the furniture, I also think they'd have a case. As it is, maybe he'll have to spray paint or otherwise obscure the company's logo. I thought these guys paid big bucks to plaster their names on anything they could like billboards, TV commercials, stadiums, people's foreheads...

    I guess Mattel missed out by not using the DMCA when they pounded the crap out of that harmless little Barbie site several years ago. I guess the lawyers need someone to beat up or they start getting cranky.

  • WTF? (Score:4, Insightful)

    by gstoddart ( 321705 ) on Thursday August 11, 2005 @01:30PM (#13296071) Homepage
    Since a cardboard box isn't Digital, and he's not Copying anything, how is DMCA applicable?

    Illegal use of their trademark maybe, since he's got a web-page up (allegedly, the site seems slashdotted) showing their boxes with their logo on it.

    But he didn't do anything to circumvent anything resembling a copy-protection mechanism or otherwise infringe on the copyrights of FedEx.

    How in heck could the DMCA even be applicable here?
  • by Soporific ( 595477 ) on Thursday August 11, 2005 @01:31PM (#13296078)
    Nice. Thanks for making the rest of us pay inflated fees because you are too cheap to go to U-Haul and buy them like a normal person.

    ~S
  • by VValdo ( 10446 ) on Thursday August 11, 2005 @01:31PM (#13296085)
    Andy Warhol would be in a lot of trouble [queensu.ca].

    W
  • by interiot ( 50685 ) on Thursday August 11, 2005 @01:32PM (#13296099) Homepage
    Oh, c'mon now...

    1) If ANY kind of lawsuit could be brought for "buying too many boxes, and then using them in an unapproved manner", it would be in small-claims court.

    2) Since they couldn't find a way to sue him for ketchup violations, they decided to sue him for trademark violations?!? And the argument involves DMCA and the .com domain name? And a lawyer gets paid far far too much to draft this lawsuit up, so they could sue a man who can't afford Ikea?? That's comedy man!

  • by Locke2005 ( 849178 ) on Thursday August 11, 2005 @01:35PM (#13296134)
    If you put up a web site called myford.com with a copy of the Ford logo on every page, then yes, they probably could sue you for trademark infringement. If he had simply named the site shippingcompanyfurniture.com, then FedEx should have no legal recourse. But of course he just had to use the trademarked "FedEx" in the name, and put a copy of the FedEx logo on every page.
  • by bn0p ( 656911 ) on Thursday August 11, 2005 @01:38PM (#13296179)
    So I can see why FedEx would take umbrage at his using the boxes they're paying for to make furniture, and then turning around and showing everyone in the world how what a bunch of suckers FedEx is for giving boxes away for free.

    Ok, so FedEx has a reason to be peeved with this guy. They could cut off his account (if he has one) and put his name on a blacklist of folks that cannot receive free boxes.

    IANAL, but scamming free boxes is not a copyright violation and I am hard pressed to see how a website showing pictures of their boxes is either.

    -- Never let reality temper imagination
  • by Anonymous Coward on Thursday August 11, 2005 @01:39PM (#13296193)
    If you don't like it, then tell UPS to stop giving away boxes or ship somewhere else.

    If it saves me $30 in boxes, I'm going to do it.
  • by Anonymous Coward on Thursday August 11, 2005 @01:40PM (#13296207)
    I'm quite certain UPS sets their fees based on what they believe consumers are willing to pay, not based on how many cardboard boxes they had to give away.
  • by l3v1 ( 787564 ) on Thursday August 11, 2005 @01:41PM (#13296215)
    Thanks for making the rest of us pay inflated fees because you are too cheap to go to U-Haul and buy them like a normal person.

    Ok, so "normal" means giving out money to some company when you can get the same or better for free. We're on Slashdot, go figure out the similarity of this situation on the OS front.

  • by doublem ( 118724 ) on Thursday August 11, 2005 @01:49PM (#13296316) Homepage Journal
    The free boxes they send out are intended for customers. Instead of making money, they're subsidizing someone else's furniture needs.

    I can understand them being upset about this, and I'm hard pressed to think of an appropriate response. Updating the terms under which they ship people free boxes so this behavior is banned, and then asking the web site owner to add a highly visible notice explaining this would have been far more reasonable, and just as effective.

    Now, there will be a whole host of mirror sites. A web site that would have been a fun curiosity has now been made infamous. Many more people will now be directed to this site than would have otherwise seen it.

    This is a backfiring legal strategy if I ever saw one.
  • by Waffle Iron ( 339739 ) on Thursday August 11, 2005 @01:50PM (#13296341)
    Thanks for making the rest of us pay inflated fees because you are too cheap to go to U-Haul and buy them like a normal person.

    UPS's management is the one making you pay inflated fees. It doesn't take a genius to figure out that if they hand out free boxes, some people are going to take advantage of it.

    If they felt like it, they could easily fix the problem by charging for the box up front and then rebating the box fee when the customer ships something in it. You can't expect to change the statistical behavior of the general public, but UPS's management could change their box policies.

    BTW, if you want to see an "inflated fee", check out what they charge for boxes at U-Haul. (But I suppose they have to make up for renting out trucks for $14.99 per day somehow.)

  • by JabberWokky ( 19442 ) <slashdot.com@timewarp.org> on Thursday August 11, 2005 @01:53PM (#13296379) Homepage Journal
    Yes. He's still behaving like a jackass. A perfectly legal jackass, but not the kind of person you want to invite to your home or go to lunch with.

    It's remarkable how people seem to equate "legally allowed" with "ethical or friendly". He's allowed to talk loudly at a restaurant about his colonectomy and the resulting issues with fecal smearing. It's legal... and makes him a piss poor example of humanity.

    --
    Evan

  • by dgerman ( 78602 ) on Thursday August 11, 2005 @02:00PM (#13296461) Homepage
    According to a letter sent by Fedex layers to Ms Granick, from the Cyberlaw clinic Fedex claims copyright infringement because, I quote:

    * "Fedex owns the copyright of its packaging"

    ergo:

    * "Fedex has the exclusive right [...] to create derivative works, to distribute copies to the public by sale [...] rental, lease, or lending and to publicly display its copyrighted works".

    * "By posting photographs of works derived from Fedex packaging materials [...] Mr Avila is inducing, causing or materially contributing to the infringement conduct of others, and could be held liable as a contributory infringement".

    There are other issues, but not related to copyright (trademark, unlawful access to the packaging materials).

    I believe the fedex lawyer has a very weak argument: that the copyright of the design on the box extends to the box as a physical object. This is non-sense. If this was the case, any built product that uses material that has a copyrighted logo printed on it will become a "derivative work". That will mean that we will require a "license" from the material supplier to be able to use it. Non sense
  • by pete6677 ( 681676 ) on Thursday August 11, 2005 @02:05PM (#13296529)
    Remember, this case has not gone to court or been ruled on by a judge in any way. Any stooge can send out a cease and decist order. It's not uncommon at all for corporate legal departments to try to intimidate someone for running a website which the company for some reason does not like. The DMCA simply gives them another club to swing. In this case, it seems like the only reason FedEx is even concerned is due to what he published on the internet, with their trademarked name visible. My guess is that he will make some slight changes to the site, like not prominately displaying the FedEx name, and that will settle the issue.
  • by Desert Raven ( 52125 ) on Thursday August 11, 2005 @02:12PM (#13296611)
    Yeah, and FedEx really pissed off Jose's lawyer too. They demanded that she take down her comments at http://cyberlaw.stanford.edu/ [stanford.edu]

    There are dumber things to do than to tell a university lawyer that they can't print their opinions. But offhand, I can't think of any. And even better yet, she's not just some staff lawyer, she's the Executive Director for the Center for Internet and Society Cyberlaw Clinic.
  • DMCA "abuse"? (Score:3, Insightful)

    by bani ( 467531 ) on Thursday August 11, 2005 @02:15PM (#13296648)
    "abuse" implies the DMCA wasn't created for this purpose.

    But you can bet it was designed for exactly this purpose, and more. That's why it's so frequently used to beat into submission anyone who is hosting a website that a corporation might find embarassing or offensive.
  • Trademark? (Score:2, Insightful)

    by Stevix ( 861756 ) on Thursday August 11, 2005 @02:16PM (#13296673)
    Clearly FedEx shipping co. only has 'FedEx' and the 'FedEx' logo trademarked as it applies to shipping containers, and within the realm of package delivery. As we can clearly see, Jose is using the term FedEx (displayed prominently on his work), in reference to a Furniture line, which FedEx shipping co. has no trademark rights within. I move for dismissal :)
  • by phriedom ( 561200 ) on Thursday August 11, 2005 @02:18PM (#13296692)
    "That cost is rolled up into the price of service. If the cost of raw materials goes up, the cost of the service goes up."

    No, it isn't, and no, it doesn't. UPS and FedEx are charging as much as the market will bear. If their costs go down, they make more profit, and if their costs go up they make less. If FedEx and UPS choose to give away free boxes for their own reasons, that is between them and the people that take advantage of it. It doesn't effect other customers one bit.

    I'll give you one example: if prices were strictly linked to costs, then cans of soda-pop would cost more in states where the distributors and retailers have to take a deposit and then refund it when the customer returns the can. Clearly, it costs them something to process and keep account of those cans coming back to the retailer and then back to the distributor, but the prices are not any higher.
  • by alteridem ( 46954 ) on Thursday August 11, 2005 @02:25PM (#13296771) Homepage
    It looks like in the end they did not have to change their name. If you read the conclusion of the ruling;
    "Having considered all of Federal Express's contentions on this appeal and having found in them no merit except as indicated above, we see no basis for reversal. The order of the district court denying a preliminary injunction is affirmed."
  • Trademarks (Score:5, Insightful)

    by ces ( 119879 ) * <christopher...stefan#gmail...com> on Thursday August 11, 2005 @02:34PM (#13296862) Homepage Journal
    Hmmm ... I'm guessing that FedEx mostly has a problem with his domain "fedexfurniture.com".

    If they get pushy (such as threatening to sue) I'd offer to change the domain name to something like "shippingboxfurniture" and otherwise tell them to go piss up a rope.
  • Re:Free Boxes (Score:3, Insightful)

    by Fulcrum of Evil ( 560260 ) on Thursday August 11, 2005 @02:35PM (#13296872)

    The Postal Inspection Service is a federal law enforcement agency, but USPS itself is no longer run by the government.

    That's irrelevant. The USPS has a legal monopoly on mail and is for all intents and purposes a federal agency. Their computers still claim to be government property when you log on and congress has specific interest in their continued survival.

  • Re:Even better! (Score:2, Insightful)

    by Phantom Zmoove ( 893297 ) on Thursday August 11, 2005 @02:36PM (#13296876)
    Hey, I still work at ups and your numbers are a little off. I think the starting pay is only $8.50 an hour and the temp is a little closer to 110 (I guess depending on what state your in) Plus the loaders usually put about 900-1000 boxes in each trailer. So if anything, your assessment of the situation was generous. It is a hard place to work. I didn't want to nitpick, but if people complain about spelling and correct you on your astronomical calculations down to .00001% I figured this would be okay.
  • by mekkab ( 133181 ) on Thursday August 11, 2005 @02:43PM (#13296966) Homepage Journal
    Good counter point.

    A funny anecdote is that at work they've made 20oz sodas $1.25. Partly for ease in making change but I can't help but think its because they've got a captive audience. Same thing with most airports; despite being very thirsty I couldn't stomach paying $1.75 at BWI for a 20oz. DCA however seems to be committed to competitive pricing.

    I've seen it go both ways, I guess. I know my wife's primary care physician sent out a letter explaining why the cost of their service was going up. Our response was to drop 'em like a ton of bricks;their underlying costs rolled up into their service price, and the market (us) wouldn't bear it.
  • by zbuffered ( 125292 ) on Thursday August 11, 2005 @02:50PM (#13297049)
    Heck, I just started buying a large coffee cup full of half and half at the corner gas station the other day because I figured out it was cheaper than buying a container of half and half.

    I don't have a problem with that from a moral standpoint -- I figure we all have our little moral justifications that we use to save us a buck here and there at the expense of The Man. It all works out in the end. But from a time standpoint, I don't get it. How much is your time worth? How much time does that trip to the corner store take you that would've otherwise been saved had you just picked up the quart of half and half when you picked up the gallon of milk at the grocery store? And if you feel just the slightest twinge of guilt upon "cheating" the corner store out of $.60 worth of half and half, what is that worth to you?
    From a financial standpoint it doesn't make sense.

    It's kinda like the 3 hours I spent driving around town the other day looking for a single 7mm nut. $.23 plus tax, but 3 hours of my time plus gas.
  • by SoCalChris ( 573049 ) on Thursday August 11, 2005 @02:53PM (#13297084) Journal
    Next time, try Budget Truck Rental. Their trucks are far nicer than U-Hauls. They try to keep the trucks in their fleet no older than 4 years.

    I'm looking to move to Montana in a few months, from the Los Angeles area. The one way truck rental from U-Haul was over $5,000 for a 24' truck. The slightly larger truck that Budget offers was a little over half that price. For under $3,000, I could get it will all the moving supplies I need, and an auto trailer so my wife doesn't have to drive behind me.

    Not to mention that the customer service at U-Haul sucks. I've never been in there, and not have to wait nearly an hour for the 2-3 people in front of me to be taken care of before they even start renting me something. When I've rented from Budget in the past, I was completely done, and out of there within half an hour.
  • Re:Free Boxes (Score:2, Insightful)

    by AviLazar ( 741826 ) on Thursday August 11, 2005 @03:28PM (#13297406) Journal
    FedEx does not object to giving it's boxes away for free, but under the assumption you will use them for FedEx shipments. Walk into a FedEx store and just ask for a box and they will charge you (well they are supposed to, they do have list prices). Go into a FedEx store, use FedEx express and the box is free.

    Not to mention he is using boxes that they create, with their logo and their name - as well as naming his website "fedexfurniture.com" - and then selling these things.

    He is clearly in the wrong - and if they can cite the DMCA then kudos for their legal team who figured a way.
  • Re:while tenuous (Score:3, Insightful)

    by zerOnIne ( 128186 ) on Thursday August 11, 2005 @03:51PM (#13297653) Homepage
    actually, .net was originally for routers, not ISPs.

    furthermore, such a strict categorization makes for some interesting questions as to where things ought to go. for example, let's say i've got a band that i don't make any money off of (and is therefore not a commercial entity), but is certainly not a "non-profit organization" in the traditional connotation.

    there are thousands more examples of cases that don't quite fit into the simple categorizations that were first envisioned with the TLDs. people have adapted their usage to the technological constraints by pushing the boundaries of what TLDs are used for which purposes.
  • Re:Free Boxes (Score:1, Insightful)

    by Anonymous Coward on Thursday August 11, 2005 @03:59PM (#13297747)
    How is he making a profit? His site was down so I didnt get to see it but from the wired article then he is NOT selling anything, and indeed works as a software developer. Which means
    A) he has a job
    B) is poor
    c) probably is reading this article on /. right now

    Woot for reading the article before posting!
  • Re:while tenuous (Score:4, Insightful)

    by xnderxnder ( 626189 ) <dan.hindgrindr@com> on Thursday August 11, 2005 @04:33PM (#13298046)
    "If you aren't commercial, you should be denied .com. If you aren't a non-profit, you should be denied .org. If you aren't an ISP or other infrastructure provider, you should be denied a .net."

    And while you're at it, presuming you're an american, why not use your darned country TLD.. .com is a global namespace, no? .. sanity indeed
  • Re:Grow up (Score:2, Insightful)

    by timmy the large ( 223281 ) on Thursday August 11, 2005 @04:43PM (#13298136)
    The USPS is owned wholey owned by the US goverment. Therefore anyting that the USPS owns is goverment property. Since the USPS owns the boxes, misuse of said boxes is a misuse of goverment property and that my friend is illegal. The USPS does not need to be a branch of the goverment to make misuse of its goods a federal crime. PS - If you ever get the urge to rob the postman that is also a federal offense.
  • Re:Grow up (Score:2, Insightful)

    by Anonymous Coward on Thursday August 11, 2005 @05:03PM (#13298325)
    f*ck you mods for thinking the parent was 'informative'.

    1) Our government has 3 branches, the post office is not one of them, however it is part of one of them.

    2) Destruction of and misuse of federal government property, may be the offenses you are looking for. Oh and BTW, your mailbox is not yours either, the MAN owns it.
  • Re:Grow up (Score:3, Insightful)

    by westlake ( 615356 ) on Thursday August 11, 2005 @05:14PM (#13298401)
    Congress passes the laws that spell out federal crimes, some low level clerk writing stuff on boxes does not define laws.

    Time spent in the mail room can be instructive:

    Prized for portability -- possessed illegally [sptimes.com]

  • Re:Free Boxes (Score:3, Insightful)

    by Weirsbaski ( 585954 ) on Thursday August 11, 2005 @05:17PM (#13298435)
    FedEx does not object to giving it's boxes away for free, but under the assumption you will use them for FedEx shipments.

    Wow, they made an assumption. Sounds legally binding to me...

    Not to mention he is using boxes that they create, with their logo and their name - as well as naming his website "fedexfurniture.com" - and then selling these things.

    I've sold stuff that people gave me for free. That's why they call it _giving_ it away.

    and if they can cite the DMCA then kudos for their legal team who figured a way.

    This is a little scary. FedEx deserves kudos, for taking a law which clearly does not apply, and whacking him with it? Why not go full-bore and call him a abuses-free-boxes-terrorist?
  • Re:Free Boxes (Score:2, Insightful)

    by Vampyre_Macavity ( 826127 ) <sgtmikeyatesNO@SPAMyahoo.com> on Thursday August 11, 2005 @05:38PM (#13298596)
    Well, I'd ship one to Dubya, witht he words "You're just like this box, Mr. President - full of s**t!" written on it in chunky black letters.

    The next I'd send to Dick Cheney. The third, John Ashcroft, the fourth and fifth to whoever's in charge of the RIAA/MPAA, and so on down my "Long List of People who are Full Of S**t (TM)."

    Whoever's in charge of this lawsuit, though, would definitely get one. -Macavity
  • Re: Grow Up (Score:3, Insightful)

    by crimson30 ( 172250 ) on Thursday August 11, 2005 @06:19PM (#13298848) Homepage
    Congress passes the laws that spell out federal crimes, some low level clerk writing stuff on boxes does not define laws. Maybe there is such an insane law, but without actual reference to it I'll assume there is not and live without fear of discarding a USPS shipping envelope unused.

    To specifically address this, here's a quote from "American Government and Politics Today" (published by Thomas/Wadsworth), under the Bureaucracy chapter (which is where the USPS falls... directly under the executive branch which is supposed to carry out laws passed by Congress):
    "Because Congress is unable to oversee the day-to-day administration of its programs, it must delegate certain powers to administrative agencies. Congress delegates the power to implement legislation to agencies through what is called enabling legislation. For example, the Federal Trade Commission was created by the Federal Trade Commission Act of 1914, the Equal Opportunity Commission was created by the Civil Rights Act of 1964, and the Occupational Safety and Health Administration was created by the Occupational Safety and Health Act of 1970. The enabling legislation generally specifies the name, purpose, composition, functions and powers of the agency.


    In theory, the agencies should put into effect laws passed by Congress. Laws are often drafted in such vague and general terms, however, that they provide little guidance to agency administrators as to how the laws should be implemented. This means that the agencies themselves must decide how best to carry out the wishes of Congress.

    The discretion given to administrative agencies is not accidental. Congress has long realized that it lacks the technical expertise and the resources to monitor the implementation of its laws. Hence, the administrative agency is created to fill the gaps. The gap-filling role requires tha agency to formulate administrative rules (regulations) to put flesh on the bones of law. But it also forces the agency itself to become an unelected policymaker."

    If mail theft, mail fruad and tampering with mailboxes can be federal offenses, then so could using USPS packaging for something other than its intended purpose.

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