Victoria's Secret Uses DMCA To Suppress Public Criticism of their Products

Adam Holland, December 19, 2012

Abstract: Victoria's Secret responds to culture-jamming activists and critics with a DMCA-based shutdown of their entire web presence.

We’re trying something new here at Chilling Effects today. We are going to take an in-depth look at a particular take-down notice, one that is especially interesting or newsworthy, or both, and try to tease out and examine all of its implications, policy, cultural and otherwise. We plan to do this on a regular basis, and hope it will become a regular feature of the site. So without further ado, "The Takedown Of The Week".

We’re trying something new here at Chilling Effects today. We are going to take an in-depth look at a particular take-down notice, one that is especially interesting or newsworthy, or both, and try to tease out and examine all of its implications, policy, cultural and otherwise. We plan to do this on a regular basis, and hope it will become a regular feature of the site. So without further ado, “The Takedown Of The Week”.

Some readers may have heard about the recent culture-jamming activities of a group called FORCE: Upsetting Rape Culture, specifically with respect to their actions regarding Victoria’s Secret (VS) and that company’s recent new line of slogan-emblazoned lingerie. If you want the tl:dr, check out the EFF’s as–always stellar write-up..

[Note: for the purposes of illustration, we will be linking to some VS product pages in this Weather Report. This does not, nor is it meant to, imply any endorsement of or from VS, or indeed any official connection at all between VS and Chilling Effects.]

The details are pretty entertaining, so we will get into them. Recently VS, no strangers to controversy released their new PINK line, garments and accessories with words printed on them, including things like panties with the words“I’m the Party” , “Wild”, as well as “Yes, No, Maybe” “Sure Thing”, Life of the Party” and “Unwrap Me”. The more egregious of these appear to no longer be available for sale on the VS website, although it’s possible they’re just hard to find.

Feeling that underwear with messages like “Unwrap Me” and “Yes No Maybe” was perhaps not the best way to empower women or create a culture that treated women as equally valid human beings worthy of respect, FORCE decided to build off the PINK line, but substituting messages of their own. FORCE’s principals discuss their intent and experiences in an interview here.
On December 3, 2012, a website appeared, along with a press release, and media campaign introducing a new line of clothing, “Pink Loves Consent”. This was ostensibly affiliated with VS, and also selling underwear with slogans. Except these were slogans like “No Means No” and “Ask First”.

Critically for the purposes of a TM-related claim ( the copyright claim has few details and little substance), the website was (and is) headed with the words “Victoria’s Secret” above a solid bar of color, a bar that on the actual VS website has links to categories of product.

Of course, there weren’t any consciousness-raising panties for sale. The entire site was the work of FORCE, and people realized this pretty quickly. And as soon as the media began covering the story, it became harder to argue that any consumer would be misled. From the perspective of TheMarySue the site was “clearly intended to fool the unwary viewer.”
That being said, the site fooled at least some, who, according to FORCE, were thrilled by what looked like an effort by VS to take a more enlightened stance on its customers' sexuality. Many who realized the site was a fake were in fact disappointed that there were no such garments for sale. Eager to sustain momentum and capitalize on a clearly untapped wellspring of support for their message, FORCE has, as a follow-up, placed pairs of actual respect–themed panties have been in what FORCE is calling “Operation Panty Drop”. I couldn't help thinking of this.

On the other hand, not everyone thought that the FORCE message was a good one, or that there was anything wrong with the VS PINK line to begin with. Others are skeptical of FORCE’s motives.

Regardless, it is what happened next that Chilling Effects is, and frankly, everyone should be, more concerned with. Victoria’s Secret was clearly not thrilled that someone was (to them, at least) seeking to masquerade—however briefly, and regardless of the message or intent—as Victoria’s Secret. The VS lawyers immediately sent a takedown letter to Bluehost, Inc., the host for the “Pink Loves Consent” website. FORCE was kind enough to send “fair use.”]

VS also took action against FORCE’s web presence in other places, including Facebook, Twitter and Pinterest. The Daily Dot has a nice run-down of back up now.
This is especially interesting because Twitter users, whether fooled or not, had begun messaging to VS in support of the putative garments using the #loveconsent hashtag. See below for more on the Internet conversation that sprung up.

Facebook removed the group’s page from search results, where it still does not appear as of this writing.

Pinterest took a more gradated approach, warning the group of possible infringement, asking them "to change your profile description to explicitly state no affiliation with the brand, and to change your board titles," and giving them a five-day deadline to respond or have Pinterest make the changes for them.

In terms of the effectiveness of generating, contributing to, or sustaining a conversation on a topic, the power of such techniques is inarguable. A lot of people, who might not have otherwise, had their horizons broadened, and got involved in a conversation about culture, sexuality, corporate ethics, and more. A Google search for “Victoria’s Secret FORCE” on December 19th brought up mostly news coverage of the controversy, but even now had an actual VS link as the sixth result, showing the power of the campaign (and possibly also of the Streisand Effect). The story was covered nationally by media, an featured on a wide range of websites including the NY Daily News, the Huffington Post, and Gawker’s Jezebel.
Cannily, FORCE had timed their release to coincide with the annual VS fashion show. . They hoped to take advantage of VS being at the front of people’s minds to leverage a more potent and meaningful conversation surrounding the issues. In that light, some have argued that copying, even 100% copying, should not only be allowed, but is essential. It looked like FORCE was succeeding. The EFF notes that -- “[d]uring the show, tweets about body acceptance and the importance of normalizing a culture of enthusiastic consent made #loveconsent the number one hashtag associated with #victoriassecret”. See FORCE’s Tumblr here for some examples of support.

But of course, the DMCA takedown made continuing that conversation impossible. As Chilling Effects readers and anyone who has encountered the DMCA know, a takedown request is very easy to issue, and will be acted on quickly, since providers are eager to retain their safe harbor. But the process for getting something reinstated, even if the cause is worthy, grinds much more slowly, and often, windows of opportunity can be missed. The “Love Consent” website, Twitterstream, and Facebook page are all back up. At least right now, Victoria’s Secret is not aggressively pursuing FORCE, or even at all, which suggests they don’t, and didn’t, really care about the alleged copyright or trademark infringement, just the negative publicity they were getting in the run-up to their fashion show, a key marketing effort for them pre-holiday shopping. Now they’re not a company enforcing their IP rights, they’re a company afraid of criticism. A company that sees its brand image as so fragile it can’t let anyone have a public forum for a negative opinion of it. In this context, the DMCA notice therefore functioned not as a way to enforce rights, but to control a conversation, or better yet, to prevent it from taking place. In that light, the acknowledged and already criticized imbalances in the DMCA process and 3rd party immunity, defended as necessary in order to make the Internet as we know it possible, seem far more problematic.

This is the weak backbone problem that the EFF has described so eloquently. “some third-party services would rather get rid of a user (or their allegedly offending content) than be drawn into a legal dispute, even where there is no liability risk to the third-party provider.”

It’s a challenge to be sure, and as the massive increase in the number of takedowns issuing to Google alone may illustrate, the DMCA is a tool on which entities are relying more and more. To do what, and how appropriately is less clear. As Google’s Legal Director points out “As policymakers evaluate how effective copyright laws are, they need to consider the collateral impact copyright regulation has on the flow of information online.”

We here at Chilling Effects don’t claim to have all the answers, but we’ll continue to try and make the problem as transparently obvious as possible.

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