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.

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!

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

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.

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.

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.

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.

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.

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.

Jesus, listen to yourself, you sound like a freeman on the land.

My point was that I don't think someone else needs to ask my permission to use the my name or my company's name first, but likewise I don't think they should be surprised (let alone indignant) when I ask them knock it off, politely or not. This is doubly true if they're being a bit cheeky and they know it.

Honestly, if I'm running a site premised on integrating with another service in a particular way without that service's buy-in, I'm going to expect at some point they'll get in touch with me. If I'm doing something I know they won't like, I'm going to expect that contact will come in the form of something between a strongly-worded email and a C&D.

We're talking about a C&D here. This is not some life-ending legal apocalypse. He could simply choose not to respond. He could pay an attorney $100 for an hour of his time if he felt that was too big a risk and learn about nominative use.

I just don't think this rises to the level of moral outrage everyone else seems to think it does. I'm not defending Tumblr, but I don't think what they did was beyond the pale.

I strongly disagree. With any product where you're building a community, you must consider community action with every single action. Randomly threatening your fans is the opposite of prudent.

Further, sending a legal threat letter here is definitely dickish. The guy was trying to be helpful. When people are trying to be nice to you, you have to start out by being nice back.

They could have sent him an equally cheap form letter saying, "Hey, we love you, but we have to protect our trademark. We think your tool is great, and we want you to keep running it. But to do that, we just need you to sign this attached document that says that you agree that Tumblr is our name, and that you agree to be cool when using it. Please sign it and return it to us via email by $date." If the person doesn't reply, then the can send the threat letter.

The reason the guy didn't reply to Tumblr to try to work it out is already linked on the page: he's had enough of them.

No. An actual lawyer has responded to this -- it was not even need to begin with (to protect their copyright).

So no reason to continue defending Tumblr's behavior.

And, if experience is any guide, QuantumBlrk.org and any other completely unrelated but blindly automate-able "matches"…

Also, all the people downvoting jfarmer for providing an accurate and comprehensive explanation of trademark law - get over yourselves.

The belief that you can prevent someone from even using your trademark in any way needs to be killed off.

I was mostly trying to divorce the actions Tumblr took from the moral outrage in the other comments by showing how what they did was not an EXTREME response, but basically the third-most-mild response after not responding at all and sending a less formal response.

The C&D could have been mildly worded for all we know. In any case, it's most productive to see a C&D as a strongly worded, "We don't like what you're doing. Please stop, now."

One is free to say "No, and here's why we won't" or even not respond at all.

This is speaking as someone who has received a much more serious C&D from Groupon and made it go away by doing nothing more than replying with a similarly-strong message. We can kvetch about the morality of it all day long, but in the mean time I went on doing what I was doing and the istumblrdown.com fellow shut his site down.

The belief that you have to enforce a trademark to the point where you have to threaten even innocent use of that trademark needs to be shot down. It's an annoying meme that needs to die. Hell, even a lawyer is saying what I'm saying.

This is exactly the same situation that, in reverse, helps people win small claims court cases against multinationals (because a £150 product refund is cheaper than the legal cost to fight the case)

They didn't have to do that. Nobody turned up with a gun and made them to it. They chose it, and they should own that choice.

http://istumblrdown.com/retraction/