Why Did Congress Abdicate Its Power To Make Copyright Policy?

from the this-is-broken dept

Earlier today, we wrote about today's Congressional hearings about legalizing the unlocking of mobile phones. That post fretted about the unwillingness of Congress to take on the actual issue. The only reason that mobile phone unlocking is illegal today is because of a broken copyright law, specifically section 1201 of the DMCA, which isn't about copyright per se, but rather a bizarre, indirect way that entertainment industry lawyers think protects copyright by making technology illegal, and effectively gives those legacy industries veto power over technologies they don't like. So when Congress realizes how this is abused for reasons that have nothing to do with protecting copyrights, they should respond by fixing section 1201. But that's not what they're doing.

What I hadn't seen when I wrote the earlier post is the way in which the IP subcommittee of the House Judiciary Committee framed the hearing today. However, the official memo from the committee outlining the hearing is actually an incredible statement, in which the committee basically claims (falsely!) that Congress does not have the power to fix section 1201! How could that be? They claim that our "international obligations" forbid this. Specifically, they point to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty as binding their hands in fixing 1201.

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty require countries that have acceded to the Treaties to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”1 Enacted in 1998 as part of the Digital Millennium Copyright Act, Section 1201 (a)(1) of Title 17 implements these treaty obligations in the U.S. by prohibiting circumvention of a technological protection measure (TPM) that effectively controls access to a copyrighted work subject to one key exception. Every three years, the Register of Copyrights is directed by statute to conduct a rulemaking in which advocates for specific exemptions may petition for exemptions to the anticircumvention provisions for noninfringing uses subject to five factors.

Since the enactment of this provision into U.S. law, the U.S. has entered into several Free Trade Agreements that require signatories (the U.S. and the particular country or region) to enact anti-circumvention provisions and set requirements on how exceptions to them can be created. Most such FTAs limit the duration of such exemptions to a three or four year period and require that they be administratively or legislatively created based upon a record of evidence.

If you're even remotely aware of the history of the DMCA and the WIPO Copyright Treaty, you would know that this is first, an incredible rewriting of history, and second, a ridiculous and false direct claim from Congress that it has abdicated its sole authority in establishing copyright policy to the administration.

First, a bit of history: In the early/mid 90s, the entertainment industry, fearing new internet technology, sought to pass the DMCA, with a specific focus on anti-circumvention rules, in the mistaken belief that strong DRM would protect their increasingly obsolete business models. However, Congress wouldn't pass such a law. So what did they do? They went to Geneva, and used the "international trade" venue to create a treaty that would then require the US to pass the DMCA if it wanted to sign onto the treaty. The key architect of the DMCA and this entire plan, Bruce Lehman, has admitted outright that he went to Geneva as a direct "end run around Congress" because they wouldn't pass the law the entertainment industry interests wanted. Just a few months ago, at a 15-year anniversary conference for the DMCA, Lehman had no problem directly admitting that he absolutely went to Geneva to deal with Congress' failure to pass the law.

Now, we've pointed out that really fixing phone unlocking would likely violate international agreements. But, the point should really be that Congress should re-assess its sole authority over copyright policy. The Constitution gives Congress the power to set copyright policy, not the administration, which negotiates treaties. So it's not even clear if the USTR (a part of the administration) has the power to negotiate international copyright policy. But it's crazy to then think that this stops Congress from fixing a broken system.

To have Congress itself say that it can't fix a clearly broken system, because of trade agreements that it did not negotiate or set is an incredible admission. It's fundamentally incorrect. Congress alone has the power to set copyright policy, and if that "violates" international agreements, that's a problem for the administration, not Congress.

However, the fact that Congress is now claiming that it has given up its power, and clearly admits that it feels its hands are tied in actually fixing a very real problem that so many people are concerned about, because a few representatives of the Clinton administration, who have admitted directly that they were creating policy by routing around Congress to support their friends in the entertainment industry, should give everyone -- especially in Congress -- serious pause about supporting things like "intellectual property chapters" in new international agreements like the TPP and TAFTA.

Both of those agreements will be setting significant aspects of copyright (and patent and trademark) policy -- without any input from the public, because they're being negotiated entirely in secret. However, the entertainment industry has full access to the documents. And here we have Congress saying -- incorrectly -- that whatever comes out of that process will bind their hands.

That's crazy.

Whether or not you think Congress should be taking on mobile phone unlocking or copyright reform or anything along those lines, I would hope that most people can agree that there's something wrong about a process in which corporate interests get to drive US policy in international agreements without any transparency or feedback from the public, and then Congress claims it can't fix the problems that those agreements create.

Filed Under: congress, copyright, dmca, judiciary committee, mobile phones, tpp, unlocking, ustr, wipo

US Looking To Strip Fair Use & Other Key Protections From Copyright Treaty For The Blind

from the this-is-helping-the-blind? dept

We had just pointed out that the MPAA is now pretending to be in support of a copyright treaty for the blind, despite its lobbyists doing all sort of things to try to block it. Now we have reports from Geneva, via Jamie Love, that the US is opposing important language in the treaty, which is part of the reason that it's still being held up. First, as noted in the link above, the US is opposing the following footnote, which may seem like a small deal:

It is understood that Contracting Parties who are members of the World Trade Organization (WTO) acknowledge all the principles and objectives of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and understand that nothing in this Treaty affects the provisions of the TRIPS Agreement, including, but not limited to, the provisions relating to anti-competitive practices.

As Love notes, similar language has appeared in a variety of other agreements, including ACTA and the Beijing Treaty (which would give Hollywood stars their own special copyrights). Why is this language important? Because TRIPS includes key provisions that allow countries to make some of their own decisions about how they implement the agreements, to protect the public's rights. But, the content industry doesn't want that same language in this treaty, which is focused on the public's rights, because they're afraid it will, once again, open the door to countries expanding the public's rights, and pushing back on egregious copyright restrictions on those rights.

As if to drive that point home, in a later update emailed from Love, he notes that the US is now also trying to get the phrase "fair practices, dealings or uses" deleted from the following section of the treaty:

"Contracting parties may fulfill their rights and obligations under this Treaty through, exceptions or limitations, specifically for the benefit of beneficiary persons,other exceptions or limitations,or a combination thereof within their national legal traditions/systems. These may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs."

In other words, it's just as we said the MPAA is trying to do: sure they claim they want a treaty to help the blind, but not if it includes anything even remotely suggesting an expansion of the public's fair use rights. So, here, they're "fine" with helping the blind get access to works, but not if it's done via fair use.

Incredible.

Filed Under: blind, copyright, fair use, treaty, trips, wipo

Blind Law School Dean Explains Why We Need The WIPO Copyright Treaty For The Blind

from the must-watch dept

As the MPAA and other copyright maximalist organizations continue to try to block the WIPO copyright treaty for the blind, which will make it easier for blind people around the globe to be able to access creative works, I was touched by this incredible video from Ron McCallum, the former dean at the University of Sydney Law School, where he is now an Emeritus Professor. McCallum has been blind since birth, and in the video he talks about how technology changed his life and allowed him to do so much -- and how important the treaty in question is, to allow that same revolution to help others, especially in less developed countries. It's touching and entertaining at the same time, and should make you wonder why the MPAA wants so badly to reject this treaty. Obviously, the MPAA doesn't hate blind people, but they're so ridiculously scared of any expansion of the rights of the public (things like fair use) that they'll block any and all moves in that direction, even if the collateral damage means that other Ron McCallums around the globe won't be able to have the wonderful experiences that he did.

Filed Under: blind, books, copyright, reading, ron mccallum, treaty, wipo
Companies: mpaa

White House Makes It Impossible For The Blind To Sign Petition Supporting Copyright Treaty For The Blind

from the well-isn't-that-convenient? dept

Last week, we discussed a recent We The People petition at the White House, asking the administration to support the treaty for the blind, which would make it easier to access creative works for the blind by creating a few small "exceptions" to copyright law (i.e., returning rights to the public) for the sake of sharing formats that are accessible to the blind across borders. However, some blind advocacy groups have discovered that, if you happen to be blind/visually impaired, it's basically impossible to sign the petition.

The glitch, the group says, is in those often annoying tests that require users to type in a set of numbers and letters to prove they are human. On the White House web site, blind users can select an audio version of the test, but the audio is incomprehensible, according to federation spokesman Chris Danielsen.

And if users want to send email notifying the White House about the problem, well, that also requires a computer-human test with garbled audio, too, he said.

That's certainly convenient for an administration that has increasingly moved away from its earlier stance that it supported this treaty. Now, making it almost impossible for the actual stakeholders to express their opinion really should drive home why increased accessibility is important. Hopefully the White House will quickly fix this bug, but more importantly, it would be nice if they actually supported the damn treaty.

Filed Under: accessibility, blind, captchas, petition, treaty, white house, wipo

Intellectual Property Owners Association Against Helping The Blind Because It Would 'Set A Dangerous Precedent'

from the encouraging-rights-for-the-public-would-do-what-now? dept

We've been covering the latest efforts by copyright maximalists to screw over the blind in the decades-in-waiting WIPO treaty process to help them get more access to content by creating clear carveouts in copyright law that protect the rights of the blind and of those who are transforming works for the blind. Basically, it's about protecting the fundamental rights of the blind to have access to information that others have because they have sight. This process has gone on for ages, in large part because copyright maximalists absolutely fear the idea that anyone might put forth an agreement that ever so slightly pushes back on the maximalist agenda.

The amazing thing is that they're not even subtle about this. Last year, we noted that in a video by Jamie Love showing Alan Adler, a VP for the Association of American Publishers, Adler was quite upfront about the fact that they're against this agreement for the blind not because of the blind folks who need the help, but rather because they're afraid of even opening the door to expanding things like fair use -- which he claims is some sort of attack on copyright.

Jamie Love has now called our attention to a letter sent by the Intellectual Property Owners Association (IPO) to Teresa Stanek Rea, the Acting Under Secretary of Commerce for Intellectual Property and the Director of the USPTO, concerning this treaty, in which the IPO is equally explicit that its main complaint is any expansion of user rights like fair use is simply not acceptable. From the full letter, which is also embedded below:

IPO supports international action that addresses the needs of the visually impaired in meaningful ways, but we are concerned about the VIP treaty as currently drafted, focused exclusively on L/Es and not on the rights holders whose copyrights are at stake. We are also concerned about the potentially negative, precedential effect that a one-sided, exceptions-focused VIP treaty may have on parallel developments at WIPO and in other international negotiations

This is all sorts of hilarious. After all, the folks at IPO have long supported incredibly one-sided agreements that only focus on the expansion of copyright, and they're among those who have actively fought any attempt to include user rights (they prefer to call them "limitations and exceptions") in such agreements. So for them to suddenly step up and complain that this one small, narrowly focused agreement is a problem because it "only" focuses on such things, without regards to their "rights holders whose copyrights are at stake" is pretty funny. Why has IPO never been concerned about the rights of the public and users in every other such agreement?

Our main concern about the VIP treaty, as currently drafted, is that it addresses L/Es to copyrights in isolation, without parallel provisions addressing IP holders’ rights. The proposed VIP treaty would create specific L/Es to copyright protection, with the aim of broadening access to print works for the visually impaired. However, it would not reflect the importance of protecting the copyright of those who created the work.

Okay, so simple question for the IPO folks: in all future agreements that it supports, will it agree to support a "balance" that addresses user rights, rather than focusing on "copyrights in isolation without parallel provisions addressing users rights?"

The idea that the "rights" here are only one way and must be constantly ratcheted up is disingenuous and somewhat sickening. It's this position that has kept the blind community from having access to all sorts of works for decades. And during those decades, folks like IPO have supported all sorts of incredibly one-sided expansions to copyright law without concerns for any public or user rights.

Filed Under: blind, copyright, fair use, ipo, precedent, treaty for the blind, user rights, wipo
Companies: intellectual property owners association

MPAA Tells US Government To Screw Over The Blind, Reject Fair Use

from the well-there-they-go-again dept

Just this morning we were pointing out the MPAA's long history of attacking fair use. We noted that this often happened in international fora, where the MPAA and others would seek to block fair use in treaties and push rules that would limit or reject the possibility of fair use. And, just like clockwork, up pops an example. Apparently the "fair use defenders" at the MPAA are working overtime to get the White House to back down on promises concerning the decades-long negotiations for a treaty to help blind people not get screwed over by copyright law. The US has flip flopped on this issue over the past few years, but apparently had finally made some concessions that were allowing the process to move forward. The MPAA wants to kill all of that.

In Geneva this week the US government is taking a harder line in the WIPO negotiations for a treaty on copyright exceptions for the blind, and the reason is simple -- lobbyists for the MPAA and publishers have been all over the White House, demanding a retreat from compromises made in February, and demanding that the Obama Administration push new global standards for technical protection measures, strip the treaty text of any reference to fair use and fair dealing, and impose new financial liabilities on libraries that serve blind people. So far the industry lobbying has worked, and the White House has sided with publishers against blind people. Dan Pescod from the World Blind Union says the conditions the USA are imposing are so severe the treaty "won't work", if they are included in the final text.

I guess they figure that blind people don't watch too many movies, so screw 'em. Apparently, it's so bad that even some US negotiators find the MPAA's actions unseemly.

Some US negotiators are uncomfortable with the intensive lobbying by the MPAA and other publishers, but dismayed by the lack of backbone in the White House to resist such pressures.

Yup, those "fair use defenders" at the MPAA sure do have the public's interest in mind, huh?

Filed Under: blind, copyright, fair use, lobbying, treaty for the blind, wipo
Companies: mpaa

Broadcast Treaty Is Baaaaaack: Plan To Create Yet Another Copyright-Like Right For Hollywood

from the and-here-we-go-again dept

Every few years the proposal for a "broadcast treaty" comes up again. The idea is to give a new copyright-like right to broadcasters. So, for example, should NBC broadcast a public domain film, like George Romero's Night of the Living Dead, it could then effectively claim a copyright-like control over it, so that you couldn't record it and make use of it yourself. If that seems like a really dumb idea to you, welcome to the club. You're not alone. Basically, everyone who isn't tied to a broadcaster thinks it's a terrible idea. Even Mr. Mythbuster Adam Savage spoke out against the idea two years ago when it last came around.

Indeed, it does seem to come around every few years like clockwork, as Hollywood pushes WIPO to put together a treaty creating broadcast rights. For a brief while, driven by some more enlightened folks within the Obama administration, the US government had pushed back against such a treaty, but nearly all of those people have long since left the administration, replaced by longterm entertainment industry folks and copyright maximalists. So it was little surprise last year when the US suddenly announced that it now supported a broadcast treaty. That announcement came from Shira Perlmutter, a former entertainment industry lobbyist, now 'Director of International Affairs' at the USPTO.

For that reason, the broadcast treaty, after years of going nowhere, should be watched quite carefully. Negotiations at WIPO have just gotten underway, and the entertainment industry has a "large presence" at the negotiations, while there is just one group, KEI, representing consumer interests directly (CCIA is also there representing the tech industry, and has a strong history of pushing back against bogus expansions of IP law, including the broadcast treaty). However, as Jamie Love, from KEI has noted, no one on the other side seems willing to explain why a broadcast treaty is even needed in the first place:

This is a frustrating negotiation for all sorts of reasons, but I'll start with the most basic concerns. It has been extremely difficult to get broadcaster treaty supporters to explain why a treaty is needed, in a world where content is already protected under several copyright and related rights treaties. At the last two SCCR meetings KEI was unable to get a single lobbyist for the broadcast treaty to make a public video interview setting out the case for the treaty, or even to answer basic questions about their objectives. We don't know if the rationale is related to piracy or to create a set of new economic rights for people who broadcast (and do not create) content. And, we don't understand why copyright does not already provide mechanisms to address piracy, when it occurs.

There are alleged gaps in copyright protection for works, but other than vague assertions that sporting events are not protected in some countries (which ones?) and some poorly articulated claims that broadcast owners don't have standing to litigate piracy, the "gaps" argument is hard to follow -- even though people are genuinely open minded, and would consider fixes to problems if they could be explained.

Some broadcasters say they don't care about the creation of new economic rights, with others clearly do. But what are these rights, and who gets them? There are proposals to create rights for giant corporations that own "channels" of content, like HBO, ESPN, the Disney Channel, etc, and these new rights would divert revenue from copyright owners to distributors. Since the ownership of distribution of video is much more concentrated than is ownership of video content, this would have distributional impacts that are not well understood. Also, there is likely to be redistribution of incomes out of some countries to a handful of large content distributors, and the impact of this cross country redistribution is not well understood.

As is unfortunately typical for WIPO, the negotiations are being led by faith-based reasoning that this is "needed," but without any data or factual basis to back it up.

WIPO could try to sort our these empirical and policy issues so people could better evaluate the proposals, but so far there has been zero economic analysis, and lots of talking about non-issues, such the interventions that seem to suggest that infringement of copyrighted material that is broadcast is somehow not an infringement without the treaty (Really, where?)

We've discussed many times how ridiculous it is that these kinds of things are "created" in these kinds of negotiations, and then foisted upon various country governments. There is absolutely no reason to create this new treaty other than to give yet another unnecessary gift to broadcasters, and to take away from the public and the public domain.

Filed Under: broadcast treaty, broadcasts, copyright, public domain, wipo

Even As US Continues To Push Stronger Intellectual Property Laws Through Trade Agreements, It Ignores Those Agreements At Home

from the good-for-the-goose dept

Even as the US tries to ratchet up patents, copyrights and trademarks in international trade agreements, talking about how it's essential to protect the US's interests, it's amazing how the US ignores those same agreements at home. For years, we've talked about the still ongoing situation with Antigua, where the US was clearly found in violation of trade agreements, but has refused to do anything about it (other than unilatterally changing the free trade agreement in question in its own favor).

But that's just the tip of the iceberg.

Other countries are complaining that the US has lost at a variety of hearings in front of the WTO (handling disputes over those trade agreements) and then proceeded to ignore those rulings entirely.

“The conduct of the United States unscrupulously discredits the WTO dispute settlement system and also constitutes an affront to the intellectual property rights,” an ambassador from Cuba said today at the WTO.

At a WTO Dispute Settlement Body meeting today, a number of WTO members fired shots at the US delegation for its continued failure to change its laws to comply with WTO rulings that found it out of compliance on intellectual property-related issues.

The article lists out a bunch of countries all complaining that, while the US keeps pressuring them to adopt strict IP laws, the US routinely ignores the same clauses in the various free trade agreements it signs.

“It is very ironic to observe the United States projecting laws on intellectual property, despite keeping violations as egregious as Section 211,” under which the Bacardi Company continues to market rum labelled Havana Club, a mark which is otherwise owned by Cuba and partners. “This is one of the most famous cases of trademark counterfeiting and conducting misleading advertising by a company backed by the US legislation.”

And while a number of the countries complaining obviously have other issues with the US (Cuba, Venezuela), it's not just those countries. The EU also has complained that the US has been ignoring various agreements.

Even the 27-member European Union weighed in on the Section 211 case, thanking the US for its report and adding the hope that “US authorities will very soon take steps towards implementing the DSB ruling and resolve this matter.” The EU also urged that the US comply with another IP case – Section 110(5) of the US Copyright Act – which involved the US commercial practice of playing music recordings, such as Irish music, aloud in bars without paying royalties. “We refer to our previous statements that we would like to resolve this case as soon as possible,” the EU said.

Of course, the proper response to all of this isn't just putting more pressure on the US to change its laws to comply, but a more basic solution: stop agreeing to "intellectual property" issues in trade agreements. The US has now made it abundantly clear that it will pressure countries into rules that go against its own best interests and then will ignore any rules that go against its own interests. So the most basic response is that the US is clearly not trustworthy on "intellectual property" in trade agreements, and other countries should refuse to include such provisions in any agreement with the US. Don't reward hypocrisy and bullying by allowing the US to do more of the same.

Filed Under: cuba, eu, hypocrisy, intellectual property, trade agreements, us, venezuela, wipo, wto

WIPO Negotiations Over Changes To Copyright For Those With Disabilities Once Again Shrouded In Secrecy

from the shameful dept

We've talked about the latest efforts concerning a treaty for the blind and others with disabilities, which will carve out some rules to give them slightly more rights to ignore certain copyrights in order to allow them to access some works. The negotiations have been going on for years (decades, depending on who you talk to) and the copyright maximalists absolutely hate the idea. They see it as opening the barn door for others to rush through asking for copyright law to be scaled back for them as well. There have been numerous stall tactics used and, of course, lots and lots of secrecy.

Once again, secrecy seems to be the way business is being done, as Jamie Love explains how everyone had been barred from using social media to inform the public what's going on.

Today after a short plenary session, the informal negotiations were scheduled to begin behind closed doors again. But WIPO decided to permit NGOs attending the negotiations to follow a live audio of the discussions, subject to a ban on the use of the Internet and related social media to report on the negotiations.

The ban specifically singled out "twitter, blogs, news reports, and email lists" and extends to social media in general.

Love argued that Chatham House rules could be effective (in which you can talk about what was said, just not who said it). But, of course, the US said that was unacceptable. Because, of course, the US doesn't want anyone to know about its crazy arguments, even if they're not attached to the US itself.

But, really, the bigger problem is the threat of retaliation under this system for reporting on info discovered through other means. Love explains the problem:

I assume we will be permitted to report and comment in other ways that do not rely upon this audio feed, but people will be careful because there is now a threat to cut off that access if the the forbidden information starts showing up on the Internet, and it maybe difficult to persuade people that the audio feed was not the source. This means less information will be disseminated, including the reports from the relatively accessible negotiators, of which there are many who are willing to talk in the breaks. These bans on the use of social media are increasingly being sought by transparency averse negotiators, particularly when pursuing anti-consumer and anti-freedom policies.

It is simply unacceptable these days to hold such negotiations in complete secrecy. It is for reasons like this that people don't trust such organizations and think they're corrupt. Even if they're not corrupt and totally aboveboard, just doing these kinds of things in secret stirs up distrust for the government.

Filed Under: copyright, disabilities, exceptions, fair use, negotiations, secrecy, treaty for the blind, user rights, wipo

Ron Paul, UN Hater, Asks UN To Take RonPaul.com Forcefully From Ron Paul's Biggest Supporters

from the this-would-appear-to-be-a-mistake dept

A year ago, we pointed out how hypocritical it was for Ron Paul (at the time still a Congressional Representative and a candidate for President) to file a ridiculous lawsuit, clearly abusing trademark law, in an effort to unmask some anonymous internet users who had made a video that attacked another candidate, John Huntsman, and closed with a claim that the video was from Ron Paul supporters. Many of Pauls' supporters actually believed the video was a fake, from Huntsman supporters, seeking to discredit Ron Paul. Even if that was true, there was simply no excuse to then abuse trademark law to try to take away someone's anonymity. And, yes, it was an abuse of trademark law -- as he both claimed trademark on his name and claimed that the video was a "use in commerce" (it was not). Even if you believe the videomakers should have been exposed, I would hope you'd agree that abusing a totally unrelated law to do so would be a mistake, and (to us) seemed to go 100% against the things Ron Paul claimed to stand for. Thankfully, a judge quickly agreed and killed the lawsuit.

In writing about this, many of Paul's more ardent supporters trashed us both in our comments, and on various Ron Paul websites. I'm a little curious how they feel now, in a similar situation, where Ron Paul has turned his legal sights on them. As a whole bunch of folks have sent in, Ron Paul has filed a UDRP complaint against the site RonPaul.com, seeking to have WIPO turn over the domain to him. RonPaul.com has basically been the central source for the massive grassroots effort that supported Ron Paul in his last two Presidential campaigns -- leading many other candidates to envy Paul's ability to connect with the internet generation. The reality, of course, was much of that actually had to do with a few of his most dedicated fans, and their ability to spread his message via a series of grassroots websites, including RonPaul.com. To have Paul turn around and seek to have WIPO turn over the domain is incredible on so many different levels, once again suggesting that many of the things Ron Paul claims to have believed in go completely out the window at times -- even when it involves turning on the very people who built up his reputation.

Even more bizarre is that not only is he turning on his most ardent supporters and effectively taking them to court, but he's using WIPO, a part of the United Nations, to do so. Ron Paul hates the UN and would like the US to leave the UN. As he once said:

The choice is very clear: we either follow the Constitution or submit to UN global governance. American national sovereignty cannot survive if we allow our domestic laws to be crafted by an international body. This needs to be stated publicly more often. If we continue down the UN path, America as we know it will cease to exist.

And yet, here he is, running to the UN, and trying to forcefully take away a super successful site from his biggest fans supporting him, using the force of that same United Nations? Incredible.

Reading through the background and history, and then digging into the claims Paul's lawyer makes, suggests that Paul has made a huge mistake here. The backstory is that in a recent interview Paul expressed some minor regret that he did not hold the domain:

Alex Jones: Well, God bless you, sir, I hope we can get you back again in a month. What are any other websites that are important, just www.CampaignForLiberty.org?

Ron Paul: There’s that, and we’ll be listing some new things there because we’re making some other WebPages. I’m going to have a home page. Unfortunately, I didn’t have RonPaul.com, so I’m going to have to have RonPaulsHomepage.com. That will be coming up, but it’s not ready yet.

In response, some of his fans told the site's operators they should look to hand over the site. The operators noted that over the past 4.5 years, and through two high profile Presidential campaigns, they were at the center of building up massive grassroots support for Paul, and they had not had any request for the domain, but they were happy to talk it over:

On May 1st, 2008 we launched a grassroots website at RonPaul.com that became one of the most popular resources dedicated exclusively to Ron Paul and his ideas. We put our lives on hold and invested 4.5 years of hard work into Ron Paul, RonPaul.com and Ron Paul 2012. Looking back, we are very happy with what we were able to achieve with unlimited enthusiasm and limited financial resources.

As we haven’t heard from Ron Paul or his staff for several years we do not know if there is any tangible interest in utilizing RonPaul.com for Ron Paul’s new projects. We have prepared a cordial message for Ron Paul that we will gladly forward to him or to any person who credibly identifies himself as part of his current staff.

Eventually, they did get in touch with the campaign, and realizing that taking down everything that had already been on RonPaul.com would represent the dismantling of a very vital community, they hoped that he would accept RonPaul.org as an alternative for free. However, if he really wanted RonPaul.com, they were willing to give that up as well, including their massive mailing list of Paul fans, for $250,000 -- not an unreasonable sum for all the content and community they had built up over the years. You can see their full letter here or embedded below. It's very cordial, makes a strong argument for why disrupting the existing RonPaul.com would be a mistake that harms Paul's supporters and message, and makes those two offers. Perfectly reasonable.

In response, Paul and his lawyers didn't just reject the request, they actually use it against them, misrepresenting the offer, the site and the entire history, in a ridiculously misleading attempt to show malicious intent on behalf of the folks who run the site -- who most people would consider some of Ron Paul's most important supporters. The WIPO filing is really a guffaw-inducing piece of work. It doesn't just present one side of the story, it goes out of its way to imply things that are clearly untrue about those who run RonPaul.com -- suggesting that the whole effort was some sort of scam to extort money from Paul. A few quotes:

Respondents can demonstrate no legitimate purpose for registering domain names identical to Complainant's RON PAUL mark.

Other than, you know, building up a massive and widely envied internet grassroots support campaign for two high profile Presidential campaigns, as well as many of the key issues that Ron Paul (supposedly) believes in. Somehow, Paul's lawyers forget to mention that part.

There is no evidence that Respondents have used or in connection with a bona fide offering of goods or services.

Apparently trying to get Ron Paul elected is not something that Ron Paul considers a "bona fide" service.

They even imply that these guys only registered the domains to try to get Ron Paul to give them money for the domains. Apparently those 4.5 years of building up a massive and vocal grassroots online community supporting Ron Paul campaigns was just a ruse or something:

Under the UDRP, bad faith can be shown where the respondent registered the domain name primarily for the purpose of selling it to the trademark owner or to a competitor of that complainant, for consideration in excess of respondent's out-of-pocket costs.

This claim is clearly hogwash. Considering everything that's been done on the site, to argue that the "primary" reason to was to get Paul to pay up is laughable. It's made even more laughable by reading the actual offer to Ron Paul from the domain holders, in which they make it clear they'd rather not sell the domain at all, and offer him a free alternative. It is abundantly obvious that selling the domain was not the "primary" reason for registering the domain, and it was so far down the list that they asked him not to buy the damn thing at all.

Further evidence of bad faith comes from Respondents' registration and use of the domain names to intentionally attract Internet users for commercial gain by creating a likelihood of confusion with Complainant's RON PAUL mark... In this case, Respondents must have known of Complainant's famous mark prior to registering the domain names. Respondents registered the domain name, utilizing the Complainant's mark, in order to suggest to internet users a connection between the domain names and Complainant. This is misleading and supports a finding of bad faith registration.

[....]

There is a high likelihood that users will be confused and believe that Complainant is the website's source, sponsor, or is some way affiliated with or endorses the website. If not for this likelihood of confusion, the rental value of the domain names would be significantly decreased.

This claim of trying to create a likelihood of confusion might sound reasonable at a first glance... except that the handy dandy Internet Archive shows that, from way back when these supporters first launched the grassroots site, the site had a prominent disclaimer that noted they were not directly associated with Ron Paul. That link above shows you what the site looked like less than 3 weeks after the domain was registered. It has the following prominently marked:

Disclaimer
The RonPaul.com website is maintained by independent grassroots supporters of Ron Paul. Neither this website nor the articles, posts, videos or photos appearing on it are paid for, approved, endorsed or reviewed by Ron Paul or his Campaign. For Ron Paul's official website, go to RonPaul2008.com

That's in the sidebar. At the bottom there's the following disclaimer:

The RonPaul.com website is maintained by grassroots supporters. It is not paid for, approved, endorsed or reviewed by Ron Paul & Campaign.

In other words, from the very beginning, they were explicit that they were grassroots supporters, and not the campaign or the candidate. For Paul and his lawyers to argue otherwise is simply ridiculous.

Respondents later offered to sell <ronpaul .com> to Complainant for $250,000 and to provide <ronpaul .org> as a "free gift" with the purchase of <ronpaul .com>.

This reaches a level that one might call "lying." The original letter is quite explicit. They would prefer not to sell RonPaul.com at all, and the offer of RonPaul.org for free was not "with the purchase of <ronpaul .com>" but a no-strings-attached offer to Ron Paul if he wanted to use RonPaul.org as his future domain (since it would be less disruptive to his grassroots supporters).

When you read through all of this, it's really quite incredible. Not once does the filing even hint at what the domain has been used for over the past 4.5 years. If you read the filing without context, you'd think that it was solely devoted to a commercial site pretending to be Ron Paul's real site, and the entire effort was built up just to try to sell it to Paul. For a politician who built up his grassroots supporters in large part because of his authenticity and his willingness to speak honestly and truthfully about issues, to turn on his biggest supporters with a pile of hogwash, while clearly abusing a process he doesn't even believe in, to try to forceably take away the site from his fans... is incredible.

As the operators of the site themselves note:

Back in 2007 we put our lives on hold for you, Ron, and we invested close to 10,000 hours of tears, sweat and hard work into this site at great personal sacrifice. We helped raise millions of dollars for you, we spread your message of liberty as far and wide as we possibly could, and we went out of our way to defend you against the unjustified attacks by your opponents. Now that your campaigns are over and you no longer need us, you want to take it all away – and send us off to a UN tribunal?

Who knows who is advising Paul on this move, but this seems like a massive miscalculation. Maybe he doesn't care any more, now that he's out of Congress. Maybe he's decided that all those years of standing up as a principled politician can be thrown out the window because he really wants RonPaul.com. Either way, this seems destined to be a stain on his legacy.

Filed Under: bad faith, domain name, ron paul, ronpaul.com, ronpaul.org, trademark, trademark abuse, udrp, united nations, wipo