
IsTumblrDown hit with a Cease & Desist - zachinglis
http://istumblrdown.com/
======
etfb
It's worth posting this to the Chilling Effects Clearinghouse at
[http://www.chillingeffects.org/](http://www.chillingeffects.org/) (go to
[http://www.chillingeffects.org/input.cgi](http://www.chillingeffects.org/input.cgi)
to submit). They're run by the EFF, so they are indisputably The Good Guys.

~~~
lightyrs
How come the EFF are 'indisputably The Good Guys'? There are plenty of
legitimate questions to be asked about the organization's and member's actual
motives and/or agendas.

~~~
siddboots
As it is, your comment is appealing to people's scepticism, but not offering
an argument of any kind. It would help if you gave an example or two of these
"legitimate questions".

~~~
bobbydavid
Not to get too pedantic, but by inviting him to provide concrete evidence, are
you not asking him to dispute it and thus proving his point?

~~~
jlgreco
Asking him to prove his point is the correct thing to do. If he is correct,
then I want to hear it. If he can't prove his point, I want it to be apparent
that he is unwilling to attempt it.

~~~
bobbydavid
But his claim, that it is disputable, is quite weak and therefore trvially
proves itself. By disputing it, he proves it can be disputed. You are seeking
to resolve said dispute, which is also important but not exactly the same
thing.

~~~
wpietri
When people in conversation say something that is trivially true, they
generally mean something deeper.

For example, consider the phrase, "It is what it is":
[http://en.wiktionary.org/wiki/it_is_what_it_is](http://en.wiktionary.org/wiki/it_is_what_it_is)

Logically, it's an obvious tautology. Idiomatically, it means, "This
circumstance is simply a fact and must be accepted or dealt with as it
exists."

So lightyrs was A) trying to say something substantive about the EFF, or B)
making an incredibly obvious statement about the literal meaning
"indisputable", which etfb clearly was using hyperbolically for effect. I
think the charitable thing to do is to assume A, which is what siddboots did.

~~~
lightyrs
You seem to have come the closest to my actual meaning, while still missing a
point of subtlety that perhaps I did not convey.

Given your dichotomy, my statement would fall under the banner of B, however,
what I am really driving at is the fallacy of the inherent trust that we tend
to place in institutions and political actors that are supposedly 'on our
side'. This is a vector that can be exploited and as such, must be minimized
at every opportunity. I am playing the role of skeptic here to contribute to a
mainline of skepticism that may serve to ultimately enhance the authority that
the EFF asserts when they claim to 'speak for us'.

You say this is 'obvious', however, I would argue that it can never be obvious
enough and that it is not actually as obvious as you might think. I am very
often bewildered by the trust people are willing to place in institutions. I
am disturbed by this trust — by this weakening of the foundations of
authority. My comment came from these emotional and intellectual
underpinnings.

------
jfarmer
IANAL, only an entrepreneur, but this should surprise no one even passingly
familiar with trademark law. Failure to enforce your trademark's registration
can expose you to claims that your mark is no longer "in use." Sure, this guy
might be 100% innocent, but it won't matter when someone less innocent comes
along and uses the fact Tumblr didn't enforce their trademark against this
other guy to be annoying.

It's easier to just shoot an email to your attorneys and have send a C&D than
it is to enter into a more protracted, _ad hoc_ conversation. It costs
virtually nothing to do this. Some associate at the firm types it up using one
of a bajillion templates, sends it out with a partner's name attached, and
bills the client for <30 minutes worth of time.

You, too, can hire an attorney and pay them a few hundred dollars to reply! Or
you can try replying yourself.

C&Ds are not legally binding, of course, and the recipient can choose to
comply, respond, or ignore as they see fit. Because of how trademark law works
I wouldn't recommend "ignoring" since the complaining party is pretty much
obligated to escalate matters.

For example, a friend of mine created a parody website of a world-famous
newspaper and predictably received a C&D. This was more than just the
trademark: it repurposed content, used the same typefaces, mimicked the same
layout, etc. They agreed to let him use it after he replied and agreed to
include a prominent disclaimer up top stating that "<Newspaper> trademarks
used with permission of <Newspaper Corporation>" and explaining that this was
a parody.

I don't know if the OP tried to do this, but I will say turning to the "court
of public opinion" as a first course of action makes this outcome somewhere
between incredibly unlikely to impossible.

Tumblr isn't trying to be evil -- you're using _their_ name, after all --
they're just trying to take care of it in the most time-efficient manner
possible. The #1 most time-efficient manner is sending a C&D. For folks whose
infringements are minor and inconsequential, it's likely that the #2 most
time-efficient manner is to let them use the name in the domain with a
prominent disclaimer and an explicit, albeit revokable, license.

~~~
lisper
> Failure to enforce your trademark's registration can expose you to claims
> that your mark is no longer "in use."

That's true, but C&Ds are not the only way to enforce a trademark. Tumblr
could have granted him a license to use the trademark in exchange for a dollar
a year. But they chose to be dicks instead.

~~~
jfarmer
Or maybe the recipient just freaked out because he didn't know how to dance to
this tune and C&Ds seem like mighty and terrible things to someone who has
never received one before?

Sending a C&D is fast, cheap, and requires almost no thought on Tumblr's part.
Tumblr is optimizing for how they focus their time and attention, not how they
treat folks using their name without permission. Why spend a few thousand
dollars of attorney-hours going back and forth with every person who puts
"tumblr" in their domain name when you can spend a small fraction of that and
just reflexively send a C&D? Next up, freetumblrthemes.com, tumblrscripts.com,
tumblrbots.com, themes4tumblr.com, officialtumblrthemes.com, etc.

Tumblr isn't being a dick. They're being prudent. This isn't an area of their
business that is important enough to optimize relative to all the other things
they might be working on, so you come up with reasonable defaults, delegate to
your attorneys, and stop thinking about it.

But, hey, if you get a C&D you now at least know you have Tumblr's attention!
Why not be contrite and reply asking for exactly what you propose? There's no
downside. Indeed, you now know you're going to receive a prompt and
unambiguous answer, whereas if you had asked for permission up front you most
likely would've been ignored.

There is, however, plenty of downside to complaining that you received a C&D
in public, particularly as a _first_ rather than _last_ resort.

~~~
sudomal
Legal letters breed resentment. I was once threatened by a big business and
promised myself never to use their services in the future. If only they had
sent an informal email pointing out the error and suggesting a fix, but nope,
it was a threatening legal letter through some third party with a short time
limit for response. Just makes me angry thinking about it and this is now
several years down the line.

~~~
jfarmer
You could be right. If you are, Tumblr will be the worse for it and you can
feel vindicated. On the other hand, maybe that's a risk Tumblr is willing to
take.

Who's to say the cost in attorney dollars and company focus of having dozens
or hundreds of one-off conversations or more every month isn't greater than
the cost of all this supposed resentment? Who's to say that the opportunity
cost of addressing that resentment is too high to justify spending time on it?
If you were Tumblr's CEO and believed either of these were true, would you
still spend time fiddling with your trademark C&D process?

To be honest, I suspect Tumblr builds up more user "resentment" every time
they change the placement of a button on their site than they have from all
the C&Ds they've ever sent out.

I've received aggressive, company-and-livelihood threatening C&Ds from
companies like Groupon, Facebook, and others of similar heft. Sometimes I
complied, sometimes I didn't, and sometimes we reached an agreement. There's
no reason to take it personally. Lord knows the other side isn't!

~~~
nknighthb
> _There 's no reason to take it personally. Lord knows the other side isn't!_

That people abdicate their humanity whenever the word "business" is attached
to what they're doing is pretty well the root of the problem.

~~~
jfarmer
Nobody is abdicating their humanity and the only "dehumanizing" thing I see is
the implication that some people are.

Let's say you live above a popular bar. On Friday and Saturday nights it gets
loud as folks line up to get in and then again as last call approaches. The
first dozen times you go down and ask folks to quiet down because it's late
and you're trying to slew. Some comply, some don't, and others are happy to
comply if you buy them a drink.

Eventually, this becomes tiring and you see it's a poor use of your time _even
if most people are happy to comply._. You enlist the bar to help and they
implement a "no tolerance" policy. If the bouncer can hear you talk you're out
of the line and won't be getting in that night.

You are on a first date with someone and go to this bar. You talk too loudly
and are told to leave. You're embarrassed and upset that this bar would
embarrass you in front of your date. You try to appeal by explaining the
situation. "Hey man, cut me a break. This is our first date, I didn't know the
rules, and in any case we were barely whispering."

"Look, man, I don't know you. I get lines like that all te time and you're
making my job harder than it needs to be right now. Come back tomorrow of you
want, but neither you not your date are getting in. I need to be checking IDs
right now, not debating you."

I'm sure you can and will nitpick the analogy, but here's my claim: even if
you feel outraged at your treatment, even if it ruined your night and your
date, nobody in the above scenario "abdicated their humanity," as you put it.

~~~
wpietri
_> Nobody is abdicating their humanity and the only "dehumanizing" thing I see
is the implication that some people are._

Your taking a human relationships issue and deciding it based on narrow cost-
benefit analysis is definitely dehumanizing. And that's exactly what you're
doing by comparing attorney salaries against the cost of resentment.

Hint: if you have to say, "hey, it's nothing personal, it's just business"
after somebody is badly treated, then dehumanization is exactly what's
happening. It's obviously personal to the person you're saying that to. What
that phrase says is that you've decided to treat them impersonally.

~~~
jfarmer
It's not my responsibility that they take it personally any more than it's my
responsibility as the apartment owner, bar, or bouncer that the person being
ejected from the line is taking it personally. As Tumblr, I have no
relationship with the person in question. Why isn't it their responsibility to
ask if they might use my name first? Why isn't it the loud-talker's
responsibility to know the rules of the road (or sidewalk, as it were) before
they hop in line?

A C&D does not have the force of law. If I build a service that piggy backs
off another service without their permission, I shouldn't be surprised that
their opening remark is a strongly-worded, "We don't know you. We don't have a
relationship with you. We don't like that you're doing this. We don't feel the
need to explain ourselves to you. Stop it, now."

If we want to talk about empathy and human-to-human interaction, the "human"
thing for me to do (IMO) would be to apologize for stepping on that other
person's toes and ask what I could do to make it work. The obnoxious thing for
me to do would be to stop what I'm doing, set up a milk crate, and start
shouting about how this other person is trying to censor me. I don't think
it's inhuman to do that, but OTOH I shouldn't be surprised when the other
person is suddenly less inclined to make nice.

In this case, I would not be saying the same thing if Tumblr's first move were
something that carried legal force, in the same way that I think it'd be
inappropriate if the first thing the bar did was call the police and file a
noise violation rather than tell the person to leave.

~~~
wpietri
Ok, I'm not engaging with your hypothetical, so I'm just going to answer the
relevant stuff.

A) This guy did not "build a service that piggy backs off another". Certainly
not more than every other site-monitoring tool, none of which any reasonable
site operator objects to. And if they do, there is a technical solution that
is pretty simple.

B) The tone of that quote is totally dickish. You might not be surprised to
get that, but this guy was surprised, and most people would be. As a fan of
Tumblr, he made something for other fans of Tumblr. The proper human response
to that is either "Thanks!" or "Thanks, but that's a problem because..." Not
some sort of freak-out.

C) Your whole made-up interaction is pure fiction, unrelated to anything
anybody has said. Your initial argument was about trademark enforcement, so I
have no idea where any sort of "service piggybacking" is coming from.

D) Tumblr were jerks first, so this guy putting up a notice that is mildly
jerky is not an unreasonable response.

Also, I just don't get why you're pursuing this so heavily. Given the way you
were a) told you were wrong by an expert, b) are getting a lot of push-back on
your arguments, and c) are getting downvoted, maybe you should take that a a
sign to pause for a while.

You seem to have done some good stuff, but this vigorous defense of callous
corporate intimidation is off-putting. Like Dylan said, you should really
listen to yourself.

~~~
jfarmer
I'm not making a legal argument. I'm explaining why I think Tumblr's response
is within the range of responses I'd expect were I the author of the site and
why their response doesn't rise to a level that I think deserves unbridled
moral outrage. The mechanics of trademark law are one of a few things which
set the bounds of this range.

I'm not saying Tumblr's response was the most productive or the most
appropriate, either, and I agree with you that Tumblr made a tactical mistake
by alienating (at least) this one customer. Who cares? If Tumblr is being
stupid they're being stupid and will pay for it by losing users and brand
equity. They're not ruining this guy's life. Their C&D didn't have the force
of law. It's a sternly worded letter from a company this fellow was annoying,
even if Tumblr "were jerks first."

If he wanted to continue running the service he could've nominally pushed
back. He decided he didn't want to and HN has, as usual, turned it into a
moral outrage and concluded that Tumblr did what they did "because they are
dicks." They might be dicks, but I think it's only tangentially related. Most
companies would do something similar.

This is speaking as someone who at one point years ago was in a screaming
match on the phone with the head of platform policy at Facebook after they
deleted a policy-compliant application of mine with ~10MM monthly active
users. Without warning. Protip: turns out screaming is also a tactical
mistake, even if you were in the right.

~~~
wpietri
Thanks for the reply.

I have not seen unbridled moral outrage. Certainly not from me or the original
article. I did not see anybody say that they were ruining this guy's life.
Including the guy. After long and deep experience he feels that Tumblr has
contempt for their users, and he is now returning the favor.

I think the easy way to resolve the apparent distance between our opinions
("they are acting like dicks" vs "I would expect this") is that current
corporate culture often sees it as ok to be dickish towards customers.

I also think the, "Who cares? If Tumblr is being stupid they're being stupid
and will pay for it by losing users and brand equity," bit is self-
contradictory. I think whole let-the-marketplace-decide thing is morally
vacuous; it implies that anything profitable is good. But if you use that as a
moral standard, you have to approve of discussions like this because
discussing products and companies _is_ how the market decides.

Also, I feel you on Facebook. I practically fell to my knees at a conference
begging one of their platform honchos to start some sort of "trusted app"
program so we could distinguish an actually useful product from all the viral
horseshit. Ah well; now I have another kind of business that is on the "never
do that again" list: big bets on other people's platforms.

------
CodeCube
Looks like this was a quick semi-joke website. If Tumblr didn't like what
message it sent (which is understandable) ... they could have started with a
simple email to the guy. Heck, they probably could have just asked him to
change the messages so that it was slightly less snarky. If he didn't want to
play ball, then sure ... C&D away. But what happened to plain old being nice?

------
tazzy531
Now's my chance to start
[http://isIsTumblerDownDown.com](http://isIsTumblerDownDown.com)

~~~
IbJacked
Hah, that's great. I shouldn't have been surprised that it exists. My question
is: did you register that or is there a bot out there registering domains that
appear in comments?

~~~
wpietri
Whoa. To me, this looks like domain squatters.

The whois info:

    
    
       Domain Name: ISISTUMBLERDOWNDOWN.COM
       Registrar: HEBEI GUOJI MAOYI (SHANGHAI) LTD DBA HEBEIDOMAINS.COM
       Whois Server: whois.hebeidomains.com
       Referral URL: http://www.hebeidomains.com
       Name Server: NS1.LOCALHOSTY.COM
       Name Server: NS2.LOCALHOSTY.COM
       Status: ok
       Updated Date: 30-aug-2013
       Creation Date: 30-aug-2013
       Expiration Date: 30-aug-2014
    

And the IP resolves to:

    
    
      NetRange:       69.43.128.0 - 69.43.207.255
      CIDR:           69.43.192.0/20, 69.43.128.0/18
      NetName:        ARIN-CASTLE-ALLOC
      Ref:            http://whois.arin.net/rest/net/NET-69-43-128-0-1
      OrgName:        Castle Access Inc
      Address:        9606 Aero Drive
      City:           San Diego
      StateProv:      CA
    
    

And some of this traces back to trellian.com, "SEO and Website Marketing
Solutions."

------
ballard
Alternatives:

[http://www.downforeveryoneorjustme.com/tumblr.com](http://www.downforeveryoneorjustme.com/tumblr.com)

[http://downrightnow.com/tumblr](http://downrightnow.com/tumblr)

------
hawkharris
I sympathize with the author and his concerns about Tumblr's disregard for its
users.

Having said that, companies have a legal responsibility to take "all steps
necessary" to protect their trademarks. Unfortunately, this responsibility
sometimes requires them to engage in seemingly nit-picky litigation.

An excerpt from chillingeffects.org [1]: _If a trademark owner fails to police
his or her mark, the owner may be deemed to have abandoned the mark or
acquiesced in its misuse. A trademark is only protected while it serves to
identify the source of goods or services._

I'm not saying that IsTumblrDown had negative intentions or that it blatantly
obscured Tumblr's brand; I never had a chance to use the site, so I didn't see
how the name was incorporated into it. I'm just saying that firms like Tumblr
are sometimes under external pressure to be aggressive in enforcing their
trademarks.

[1]
[http://chillingeffects.org/trademark/faq.cgi#QID418](http://chillingeffects.org/trademark/faq.cgi#QID418)

~~~
nitrogen
Fair use applies to trademarks, too:
[https://en.wikipedia.org/wiki/Fair_use_%28U.S._trademark_law...](https://en.wikipedia.org/wiki/Fair_use_%28U.S._trademark_law%29)

Specifically see this paragraph:

 _A nonowner may also use a trademark_ nominatively _—to refer to the actual
trademarked product or its source. In addition to protecting product criticism
and analysis, United States law actually encourages nominative usage by
competitors in the form of comparative advertising.[citation needed]_

~~~
jfarmer
This is likely an expensive argument to make and one that Tumblr would be glad
to spend legal dollars to fight. Tactically, it would make more sense to be as
contrite as you possibly can, play the naïve engineer who loves Tumblr to
death, and ask them for permission to use the name in the domain in exchange
for including a prominent banner + disclaimer at the top of the page or
wherever Tumblr prefers.

~~~
nitrogen
Sounds like yet another flaw in our current legal system.

------
zachinglis
They've sent a retraction:
[http://istumblrdown.com/retraction/](http://istumblrdown.com/retraction/)

------
antiterra
Could you link us to a copy of the C&D?

------
pbreit
> Failure to enforce your trademark's registration can expose you to claims
> that your mark is no longer "in use."

Is that actually true? Has such a thing ever really happened in a situation
like this?

------
maxmcd
The site was more opinionated than your typical "isup.me" style site, so while
I can't justify the C&D I can at least understand the motivation a little bit
more.

~~~
TallGuyShort
Although there's probably some Streisand Effect happening here. I hadn't heard
all this about Tumblr - but now it's the most memorable thing I've heard about
them. It's bad PR, but as others are pointing out, it's likely Trademark
protection.

------
elliottcarlson
Missing E's warning is to indicate that using a third party plugin to alter
the sites behavior - which is constantly being improved and worked on - could
have negative effects. If something breaks due to Missing E not working with
an update that gets pushed out, then disable Missing E. Check the first page
of the Missing E blog, and almost every post is regarding an update due to
Missing E breaking in some way due to incompatibility. Seems pretty straight
forward to me?

~~~
zachinglis
Tumblr itself was highly fragile, so this could be the case. But the Tumblr
users were used to things breaking a lot and understood.

I think the biggest thing was the fact they spent all the time removing
Missing E rather than adding a few features people wanted.

------
NelsonMinar
I'm curious what legal justification someone would think they have for
preventing a site like IsTumbrDown from operating.

~~~
CodeCube
trademark I'm guessing ... they use their brand's name in the domain, which
could lead to confusion about whether it was official or not.

~~~
clicks
If that was the concern, couldn't a clear message like _" IsTumblrDown? is in
no way affiliated to Tumblr"_ make it okay?

------
loceng
I wonder if this is a case of them requiring by law to defend their trademark,
though then I wonder why they can't just license it for $1 per year for the
exact use currently being used - so you can't then just go get a license and
change everything to be different..

------
mdisraeli
Having yet to see the C&D, the mostly likely reason for this would be utterly
boring but entirely rational trademark enforcement/infringement. Odds are, a
human only signed the letter without so much as reading it or asking anyone in
management for a second opinion.

------
atoponce
Alternative: run your own Smokeping server, as I am here (give it some time to
populate the data):

[http://zen.ae7.st/smokeping/?target=Internet.Tumblr](http://zen.ae7.st/smokeping/?target=Internet.Tumblr)

------
msh
Maybe time to register isTumblrEvil.com

I now need to consider where to move my tumblr blog.

------
zachinglis
Updated with the letter as people requested.

------
sarreph
What a shame... What are they doing?

~~~
joeblau
Probably trying to protect their brand. You can always still hit:
[http://isitup.org/tumblr.com](http://isitup.org/tumblr.com)

------
sluu99
"its," not "it's"

