Matt Furie is taking back Pepe the Frog—and he’s not holding back. Last month, the creator of the cartoon frog sent his lawyers after Eric Hauser, who had used Pepe as one of the lead characters in a painfully Islamophobic children’s book, and now those same lawyers have issued a flurry of cease-and-desist letters and DMCA takedown requests to other copyright infringers and those who host them.
Matthew Gault reports on Motherboard that cease and desist orders have been sent to Richard Spencer, Mike Cernovich, Tim Gionet (a.k.a. “Baked Alaska”), and the r/the_Donald subreddit. The C&D letters explicitly state that the next step will be to hit the infringers in the wallet:
Furie’s legal team makes clear that Furie plans to ask Spencer, Cernovich, and Baked Alaska for money in addition to demanding they stop using Pepe’s image: “After we have received confirmation that you have ceased infringement, we will contact you to discuss what additional information we need from you to calculate the appropriate amount of damages,” the letters read.
Furie’s legal team has also issued DMCA (Digital Millennium Copyright Act) takedown requests to Amazon, Google Play, and Reddit, naming specific pages that host infringing images. Gionet’s book Meme Magic: Secrets Revealed, which has Pepe on its cover, is no longer available on Amazon, and Google Play has dropped his app Build the Wall: The Game. (Apple has already banned Pepe from its App Store.)
Lawyers from Wilmer Cutler Pickering Hale and Dorr LLP are representing Furie pro bono (without charge), and they are certainly doing a bang-up job. But as satisfying as it is to watch pinheads like Richard Spencer get a legal punch in the nose, the selective takedown notices raise an interesting question: Is it legitimate to target one group of infringers because of their beliefs? Pepe has been all over the place for years, not just as an internet meme but on products like pajamas and T-shirts, but Furie didn’t try to enforce his intellectual property rights until 2016, when Pepe was turned into a sort of badge for the collection of internet trolls and white supremacists who call themselves the “alt-right,” and even now, that seems to be the only group he and his lawyers are going after.
I’m not a lawyer, and IP law is pretty complicated stuff, but there is a similar case going on in the gaming world right now: The game company Firewatch has prohibited the game reviewer Pewdiepie from showing any of its games on his video channel, after he used a racial slur during a live video session. They have not taken similar action against any other YouTube game reviewers. Attorney Mona Ibrahim, who specializes in video games, argues that this is permissible: To enforce a copyright claim, the rights holder need only show that an infringement exists, and in the case of copyright (as opposed to trademark) it’s perfectly legitimate to do this selectively.
On the moral side, one could argue that Furie’s actions are a form of censorship, but Furie isn’t the government, and Baked Alaska and his cohort are still free to express their opinions. They just can’t use Pepe to help them.