Saturday, November 7, 2009

American political commentator Glenn Beck has lost his case against a satirical website which parodies him, in a ruling from the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. The website argued Beck’s actions to shut it down were an attempt to silence free speech. On Friday, the website’s creator sent a letter to Beck saying he would voluntarily turn over the domain name to him.

Florida resident Isaac Eiland-Hall created the website in September, and it asserts Beck uses questionable tactics “to spread lies and misinformation”. The website was represented in the case Beck v. Eiland-Hall by free speech lawyer Marc Randazza. Wikinews interviewed Randazza for the article “US free speech lawyer Marc Randazza discusses Glenn Beck parody”, and previously reported on the case in articles, “US free speech lawyer defends satire of Glenn Beck” and “Satirical website criticizes Glenn Beck for ‘hypocritical’ attempts to silence free speech”.

Eiland-Hall registered the website at the domain “www.GlennBeckRapedAndMurderedAYoungGirlIn1990.com”. Its premise was derived from a joke statement made by Gilbert Gottfried about fellow comedian Bob Saget. Users of the Internet discussion community Fark first applied the joke to Beck, and it then became popular on several social media sites. Eiland-Hall saw the discussion on Fark, and created a website about it. The website asserts it does not believe the rumors to be true, commenting, “[b]ut we think Glenn Beck definitely uses tactics like this to spread lies and misinformation.” The website was created on September 1, and just two days later attorneys for Beck’s company Mercury Radio Arts took action. Beck’s lawyers sent letters to the domain name registrar where they referred to the domain name itself as “defamatory”, but failed to get the site removed.

Beck filed a formal complaint with the Switzerland-based agency of the United Nations, WIPO, who operate under regulations laid out by the Internet Corporation for Assigned Names and Numbers. Beck asserted the website’s usage is libelous, bad faith, and could confuse potential consumers. Beck’s complaint was filed under the process called the Uniform Domain Name Dispute Resolution Policy. This policy allows trademark owners to begin an administrative action by complaining that a certain domain registration is in “bad faith”. Beck argued the site should be shut down because it is an infringement upon his trademark in his own name, “Glenn Beck”.

Eiland-Hall retained Randazza as his attorney after receiving threatening letters from legal representatives of Beck. On September 28, Randazza filed a response brief to WIPO, contending the site is “protected political speech”, due to it’s “satirical political humor”. Randazza stated, “even an imbecile would look at this Web site and know that it’s a parody.” Randazza’s brief commented on Beck’s style of reporting, and highlighted a controversial statement made by him when interviewing a Muslim US Congressman. Beck said to Representative Keith Ellison, “I like Muslims, I’ve been to mosques. … And I have to tell you, I have been nervous about this interview because what I feel like saying is, sir, prove to me that you are not working with our enemies.” According to the Citizen Media Law Project, the website’s joke premise takes advantage of “a perceived similarity between Beck’s rhetorical style and the Gottfried routine”.

Randazza argued in the response filed on behalf of Eiland-Hall that Beck attempted to use the process of the WIPO court to infringe the free speech rights of his client; “Beck is attempting to use this transnational body to circumvent and subvert the Respondent’s [web site owner] constitutional rights [to freedom of speech],” he wrote. Randazza cited the U.S. Supreme Court case, Hustler Magazine v. Falwell, in arguing that Beck’s attorneys advised him against filing legal action in a U.S. court because the website would likely be seen as a form of parody and due to the First Amendment to the U.S. Constitution, such legal action would not be successful.

On September 29, Randazza sent a request to Beck’s representatives, asking that their client agree to stipulate to the United States Constitution, and especially to the First Amendment, during the case before the WIPO. In the request, Randazza quoted a statement from Beck himself about the usage of international law by United States citizens, Beck said, “[o]nce we sign our rights over to international law, the Constitution is officially dead.” In an October 19 interview with Wikinews, Randazza stated that Beck had not replied to his request to stipulate to the U.S. Constitution and the First Amendment in the WIPO case.

On October 20, Randazza filed a surreply – a response document to an October 13 supplementary filing made by Beck in the case. Attorneys for Beck asserted in the supplementary filing that the joke made by the website is difficult to comprehend, and therefore the domain name is confusing. In Beck’s supplementary filing, his lawyers argued, “While there is absolutely nothing humorous or amusing about the statement made by Respondent in his domain name that ‘Glenn Beck Raped and Murdered a Young Girl in 1990,’ the average Internet user finding the domain name GlennBeckRapedAndMurderedAYoungGirlin1990.com (“Disputed Domain Name”) in a search would have no reason not to believe that they will be directed to a website providing factual information (as opposed to protected criticism or similar protected speech) about Mr. Beck.”

Randazza’s surreply asserted, “An average Internet user might not ‘get the joke’. In fact, the average Internet user does not understand any internet memes. That’s the fun of a meme – it is an esoteric inside joke that will leave most people scratching their heads.” In Randazza’s conclusion to the Eiland-Hall surreply, he called Beck “the butt” of a joke he apparently does not understand. Randazza wrote that Beck “should be deeply ashamed” for devaluing the First Amendment to the U.S. Constitution.

For Beck to have prevailed in the case, the WIPO arbitrator would have needed to rule in his favor on three points: the domain name was confusing with the mark “Glenn Beck”, the registrant Eiland-Hall did not have rights to the domain name, and that the domain name was registered as an act of “bad faith”. Frederick M. Abbott, the WIPO arbitrator, did rule that the domain name was confusing, but also ruled that Eiland-Hall had legitimate interest in the domain name of the website he created. “Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant’s mark under the Policy,” said the WIPO ruling.

The WIPO decision also commented on the matter of third-party websites which may have derived profit through links from Eiland-Hall’s website, “While there is some evidence that at some stage third-party vendors of goods and services critical of [Beck] may have earned some income on sales of t-shirts and bumper stickers embodying political slogans based on click-throughs from [Eiland-Hall’s] Web site, the panel does not believe this is sufficient ‘commercial activity’ to change the balance of interests already addressed,” said the ruling.

After the WIPO ruling, Eiland-Hall decided to voluntarily relinquish ownership of the domain name and hand it over to Glenn Beck. On Friday, Eiland-Hall sent a letter to Beck, and pointed out that Beck’s actions only served to further increase publicity to the meme described on the website. “It bears observing that by bringing the WIPO complaint, you took what was merely one small critique meme, in a sea of internet memes, and turned it into a super-meme. Then, in pressing forward (by not withdrawing the complaint and instead filing additional briefs), you turned the super-meme into an object lesson in First Amendment principles,” wrote Eiland-Hall in the letter to Beck.

Eiland-Hall criticized Beck’s actions with regard to the First Amendment to the U.S. Constitution, writing, “It also bears noting, in this matter and for the future, that you are entirely in control of whether or not you are the subject of this particular kind of criticism. I chose to criticize you using the well-tested method of satire because of its effectiveness. But, humor aside, your rhetorical style is no laughing matter. In this context of this WIPO case, you denigrated the letter of First Amendment law. In the context of your television show and your notoriety, you routinely and shamelessly denigrate the spirit of the First Amendment”. He stated that he persevered in the case in order to uphold the value of the First Amendment to the U.S. Constitution, “I want to demonstrate to you that I had my lawyer fight this battle only to help preserve the First Amendment. Now that it is safe, at least from you (for the time being), I have no more use for the actual scrap of digital real estate you sought…” A representative of Beck declined to provide a comment about the WIPO ruling, after a request from PC Magazine.

Commentators likened the legal conflict between Beck and the site to the Streisand effect, a phenomenon where an individual’s attempt to censor material on the Internet in turn proves to make the material itself more public. Wendy Davis of Online Media Daily commented on the impact of the case, “The decision appears to mark a significant win for digital rights advocates because a ruling in Beck’s favor could have encouraged other subjects of online parodies to take their complaints directly to the WIPO rather than U.S. courts, which are bound by the First Amendment.” Citizen Media Law Project’s assistant director, Sam Bayard, wrote that the ruling was appropriate, “It’s good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution.”