Conservative yakker Glenn Beck hasn't (yet) been rounded up and sent to a secret FEMA prison camp, which has given him time instead to send his lawyers after the owner of the satirical glennbeckrapedandmurderedayounggirlin1990.com. Beck has reached deep inside to find a hitherto hidden well of respect and affection for foreign international organizations, and he has taken his case to the domain name dispute center at the World Intellectual Property Organization (WIPO) in Geneva. The site, he says, is defamation, and it violated his trademarked name.
But the anonymous website operator who has been targeted by Beck today stepped up, identified himself, and found a lawyer to file a response (PDF)—and what a response it is. How many legal documents have you seen that throw circumspection to the four winds and tell a WIPO arbiter that "only an abject imbecile could believe that the domain name would have any connection to the Complainant." And that's before the "HOMOSEXUAL BLOOD ELF" even makes an appearance.
Play him off, keyboard cat
Glennbeckrapedandmurderedayounggirlin1990.com turns out to be run by one Isaac Eiland-Hall. Eiland-Hall had discovered a Fark thread in which commenters picked up on a Gilbert Gottfried routine about Bob Saget raping and murdering a teenaged girl (it's, er, a bit funnier in context than it sounds [NSFW]). They adapted it for Beck to highlight what they perceived as his habit of forcing people to explain away completely baseless charges—as when Beck interviewed Muslim Congressman Keith Ellison (D-MN) and opened with this gem: "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. And I know you're not. I'm not accusing you of being an enemy. But that's the way I feel, and I think a lot of Americans will feel that way."
How better to give Beck a taste of his own medicine than by wondering publicly why he has never addressed the rumor that he raped and murdered a young girl in 1990? No one's saying that Beck really did it but if he has nothing to hide, why won't he deny the tale?
You get the idea. Eiland-Hall thought this was genius ("It just felt right," he told Ars a couple weeks ago) and set up his own website to give the burgeoning meme its own homepage. The site went up on September 1 and had a huge spike of initial interest—it served more than 120,000 page loads in the first 24 hours. By September 3, lawyers for Beck's media company, Mercury Radio Arts, tried to have the domain name deleted by the registrar (they failed) and also took their case to WIPO, which mediates domain name disputes.
When we spoke to Eiland-Hall earlier, he was unsure about unmasking himself by replying to the WIPO complaint, which meant that he would soon lose the domain name. In the three weeks since, however, he changed his mind and found himself a lawyer named Marc Randazza. Randazza dropped us a line today with a copy of his response to Beck's complaint, and boy, is it something... unique.
The reply opens by pointing out that domain name disputes aren't designed to "resolve all Internet-related grievances." Beck might be unhappy about the domain name and the site content, but he can't use WIPO to prove defamation. The domain name dispute process is generally used to prevent cybersquatters from sitting on trademarked terms, and it generally applies only when there is both commercial intent and the real possibility of consumer confusion.
The satirical site is noncommercial, but is it "confusingly similar" to Glenn Beck's name? Randazza doesn't think so. "We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent’s website wondering 'where did all the race baiting content go?' We are here because Mr. Beck wants Respondent's website shut down. He wants it shut down because Respondent's website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck's very rhetorical style."
In the US, courts have long adopted a "moron in a hurry" test for dealing with issues of trademark confusion. Would a moron, hurrying home at the end of a long day and seeing the offending sign/billboard/website, likely confuse it with an official offering of the trademark holder?
The reply says no. "It is specious at best for Mr. Beck to assert that his fans, or the public as a whole, would confuse Respondent’s website with Mr. Beck himself—unless of course it is Mr. Beck’s view that his fans and the average internet user are in fact hurried morons. Respondent presumes that this is not how Mr. Beck regards his audience. And, even if he does so regard his audience, this is not a basis for upholding his complaint."
Randazza then proceeds to explain the concept of "Internet memes" to a presumably uninterested European WIPO bureaucrat.
From "Mr. Spock Ate My Balls" (defunct) to ALL YOUR BASE ARE BELONG TO US to "Leeroy Jenkins" to a slew of sub-memes based on the movie "300," Internet memes are as old as the internet itself, and almost as ubiquitous as actual cybersquatters Memes are often puzzling to those who have never encountered them before, and they are similarly puzzling to the subjects of the memes when they involve real people
Nobody believes that the director of the critically acclaimed “Downfall” would have directed a script in which Hitler screams “YOU HOMOSEXUAL BLOOD ELF!”
Similarly, nobody really thinks that “Every time you masturbate... God kills a kitten,” which was an internet meme that originated on the same website that spawned the Glenn Beck meme, Fark.com
Memes often involve famous people, and they are often unflattering. Richard Gere has never dignified the infamous “Gerbil story” meme with a response, even though the story is nasty and false, and it too has entered the culture as an irrepressible meme, even making an appearance in The Simpsons, Episode 183. This is the price of celebrity—you just might wind up in a meme, and you might not deserve it. Richard Gere did nothing to bring the meme monster to his door.
The basic charge here is that Beck and his lawyers are using a WIPO proceeding to shut down a website that they could not shutter under US law (thanks to the First Amendment). Whether this is true or not is debatable—lawyers we spoke to were divided, on the subject, as the factual nature of the domain name and the site's initially small disclaimer might be found defamatory in court.
In any event, the WIPO battle promises to be entertaining, and there's even a bit of serious purpose mixed in with the frivolity. Just how far can WIPO go in using its domain dispute system to address Internet spats? Because WIPO is not a court system (it can use "any rules and principles of law that it deems applicable" to a particular complaint), it is not bound by its own precedent and it sometimes has a reputation for favoring big trademark holders. But WIPO has ruled on thousands of these disputes before and does have a track record of rejecting claims in which companies or individuals use the process as a way to shut down criticism or satire.
Eiland-Hall certainly hopes to prevail at WIPO, though of course the issue there is a minor one; who controls a particular domain (Eiland-Hall has already registered several similar but less inflammatory domains to deal with the situation). The bigger problem could be that now, after unveiling himself, Beck's lawyers decide to send a message and drag the whole case into a US court, where big monetary damages could be on the line.
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