home

Obama, urls, Domain Names, Cybersquatting and The First Amendment

Remember this story?

Sign on to www.gwbush.com and an altered, obviously fake image appears of a gleeful-looking Texas Gov. George W. Bush with a straw up his nose, inhaling white lines. Www.gwbush.com is not, needless to say, the official Bush campaign Web site (which is www.georgewbush.com).

And that's exactly the point, says the site's creator, Zack Exley, a 29-year-old computer programmer from Boston. Www.gwbush.com is so outlandish that anyone would spot it as a parody site, he says. . . . Bush's lawyers had warned Exley that he faced a lawsuit for his Web site's use of photos lifted from the copyrighted official Bush campaign site.

. . . Exley said Bush's intent is to intimidate and shut him down--a charge the Bush campaign denies. And Internet enthusiasts and free-speech advocates are closely monitoring the case because of its First Amendment implications.

In somewhat different circumstances, Barack Obama has, apparently, found control by someone not himself of the much renowned MySpace site, the one with the 160,000 "friends of Obama," objectionable. But unlike in the Bush situation, there is no question of cybersquatting, MySpace invoked its user agreement with Joe Anthony, the creator of the MySpace profile, and at the request of Obama, took the profile url away from Anthony and granted to it Obama.

First lesson of this episode? Don't build MySpace profiles of celebrities. MySpace will take them away from you at the request of said celebrities.

More lessons on the flip.

Let's be clear, this is not a cybersquatting case. There is no registered domain name involved. This is a question of the agreement between Anthony and MySpace, and the potential duty of good faith negotiations and/or any estoppel interest Anthony may have gained against Obama. Those are fact intensive issues.

The situation would be more interesting legally in my view if it did involve a domain name. I think there are serious issues regarding the First Amendment and the manner in which the UDRP is applied when celebrities are involved. Here is a good article discussing the issue:

The Starr case is emblematic of how domain name disputes often are resolved: fast, relatively inexpensively and typically in favor of the celebrity. Under the Uniform Domain-Name Dispute Resolution Policy system set up in 1999 to combat cybersquatting -- the practice of registering an Internet address solely with the intent of selling it back to its rightful owner at a profit -- the arbitration panel charged only $2,250 for its services, a fraction of the $20,000 average cost of litigating a civil action in federal court. Starr was not entitled to damages, but he obtained his desired result without enduring months of litigation.

Four arbitration providers handle the vast majority of domain name dispute cases. And business is booming -- the number of filings for arbitration at the World Intellectual Property Organization has almost doubled since 2003, reaching 1,946 last year. Another provider, the National Arbitration Forum, handled 1,658 cases in 2006, the busiest filing year in its history. Cases usually are decided on briefs without any oral hearing and on average within 50 days or less.

But some argue that the efficiency of the uniform system comes at the expense of those who aren't household names. Bradley, like most domain name registrants in arbitration proceedings, was not represented by counsel and, according to some experts, had a slim chance of prevailing against a well-known figure in a fact-specific proceeding under what many believe is a vague standard of what constitutes improper use.

"Often the panelists will say, 'Well, they're a celebrity, no one can have a legitimate interest (in the name) for that reason,' " says Ari Goldberger, a Cherry Hill, N.J., attorney who has represented registrants.

One member of the Starr panel felt Bradley had not received a fair shake and dissented from the majority's findings.

"(E)ven though (Bradley) has not shown demonstrable preparations towards his fan site, he appears to have the right to lawfully launch a noncommercial fan site at the domain name ringostarr.mobi in the future," wrote David Bernstein, an arbitrator and attorney at Debevoise & Plimpton in New York. In 2000, the same neutral cleared a registrant to use the domain name edwardvanhalen.com for a fan site.

Michael Froomkin, a professor at the University of Miami School of Law and a former arbitrator, believes what happened to Bradley is an example of the system's "rough justice." "The problem is evidence," he says. "Trademark cases are as fact-intensive as anything. Facts require a trial. The UDRP was supposed to get (abusive registration) cases where the facts are slam-dunks."

If this were a case before a WIPO arbtiration panel, would Obama prevail? Should he? Anthony certainly put the url to use and it was non-commercial use. Was anyone confused? No reporting of such confusion.

I would say no. And yet, Anthony has lost his profile url. Rough justice indeed.

< Bush: Iraq Supplemental Unconstitutional | More Trouble for Alberto Gonzales >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    In the end, (5.00 / 1) (#7)
    by Maggie Mae on Wed May 02, 2007 at 04:55:08 PM EST
    this sums up the whole thing pretty well:

    Now if you mean how does it affect Obama, well, he screwed up politicallypretty clearly.

    What I don't understand is why Obama's minions chose to play hardball with Anthony without negotiating with him on compensation?  Aren't they supposed to be the "most internet savvy" campaign out there?  How could they not see the potential for a perception problem with the way they handled this?  And if they did see the potential problems, why weren't they better prepared to respond to the situation when it hit the net?  Sloppy, sloppy, sloppy.

     

    BTD- (none / 0) (#1)
    by qwerty on Wed May 02, 2007 at 04:03:39 PM EST
    How do the MySpace TOS impact the situation?  My understanding (and experience) is that they don't allow people to have sites in other people's names and will return the URL to the person whose name is used as soon as the challenger has proven to be legit.  Because this supporter used myspace.com/barackobama, he violated that rule.  This seems pretty clear, so I'm not sure what the additional details are that have made the situation so muddy.

    I have no idea what your point is (5.00 / 1) (#2)
    by Big Tent Democrat on Wed May 02, 2007 at 04:05:54 PM EST
    I wrote precisely what you said.

    I wrote it would be more interesting legally if it was a cybersquatting issue.

    Now if you mean how does it affect Obama, well, he screwed up politicallypretty clearly.

    40k would have been worth the price of avoiding this.

    Parent

    I'll attempt to be more clear. (none / 0) (#3)
    by qwerty on Wed May 02, 2007 at 04:11:18 PM EST
    (Though I don't know if I'll succeed.)

    I guess I just don't understand why there's a controversy at all.  The guy violated the TOS, happily and voluntarily ran a site as Barack Obama and then tried to bribe the campaign into paying him for having done it.  I'm really not sure what case the guy would have at all.

    And not for nothing, I'd always assumed it was the official MySpace page, particularly because of the TOS.  I'm sure I'm not the only person who was confused.  (Granted, I also don't really care....)

    Parent

    I wrote about what I thought was interesting (none / 0) (#4)
    by Big Tent Democrat on Wed May 02, 2007 at 04:22:33 PM EST
    Did you read below the fold at all?

    Honestly, you are asking me questions that are not about my post.

    I don't believe I said a negative word about Obama.

    I actually wrote about the law for once.

    Parent

    Query: was the non-Barack Obama (none / 0) (#5)
    by oculus on Wed May 02, 2007 at 04:30:50 PM EST
    signing up volunteers or raising money through MySpace [which, as you probably can tell, I've never bothered to look at]?

    $40,000 does seem cheap compared to how many possible likely young Obama Barack voters may be offended by this assertion of power against the underdog.    

    Parent

    I did. (none / 0) (#6)
    by qwerty on Wed May 02, 2007 at 04:31:13 PM EST
    And I guess I was asking your opinion, more than anything, since it's causing such a brouhaha and it seems so simple.

    Never mind-- sorry to waste your time.

    Parent

    No problem (none / 0) (#10)
    by Big Tent Democrat on Wed May 02, 2007 at 06:07:39 PM EST
    I was hoping for some interest in the legal issue but it seems I am the only one interested in that.

    Carry on.

    Parent

    Very poorly handled, I agree... (none / 0) (#8)
    by Nanette on Wed May 02, 2007 at 06:00:42 PM EST
    by the Obama camp. I'm amazed that it was allowed to get to this point and, now that it has, it's not being taken care of swiftly (enough).

    That said... I'm fairly confused on this. I am not quite sure what they are supposed to be compensating Anthony for. The lost of the "barackobama" myspace name? It's my understanding that everything else... content, 160,000 friends and so on that was on the original space moved with him to his new one.

    He wanted $40,000 (or so) dollars for the work he put in, they decided it wasn't worth it and sent the work along with him - he kept his work, they kept the name. They went really wrong in PR, which is bad enough especially as the 'netroots' don't seem to like Obama much in the first place, but other than that - well, it seems much ado about not so much.

    Well (5.00 / 1) (#9)
    by Big Tent Democrat on Wed May 02, 2007 at 06:06:46 PM EST
    Why not let him keep the url?

    That seems to me to be the issue here.

    urls can have great value. Moreover, if this one did not, why take it from him?

    Very strange frankly.

    Parent

    I've not followed this super closely, but... (none / 0) (#11)
    by Nanette on Wed May 02, 2007 at 06:17:42 PM EST
    I thought the entire thing was a result of the fact that he had the url in the first place. URLs can indeed have great value, especially if it's your name that is the draw.

    Apparently they decided at first to work with him instead of just pushing him off (which they could have done months ago, after Obama officially declared, using the TOS). What happened in between I don't know... something to do with the site being seen as both official and unofficial and that they were nervous it wasn't under their control (not surprising in a major campaign) and whatever else.

    They did this in a very dumb and costly way, but the easiest part of it for me to understand is them wanting control of the brand.

    Parent

    He had it for 3 years (none / 0) (#12)
    by Big Tent Democrat on Wed May 02, 2007 at 06:39:59 PM EST
    They knew about it for some time.

    When did it become a problem?

    Parent

    Someone named Joe Rospars (5.00 / 1) (#15)
    by Nanette on Wed May 02, 2007 at 07:23:14 PM EST
    Has posted at MyDD (and probably other places) with the other side of the story. This seems to have been the main sticking point:


    At the same time, though, the community had skyrocketed. Nobody expected the grassroots to respond this campaign in such large numbers the way they have, and the rapid growth of the MySpace profile once the MySpace Impact Channel began promoting the various candidates is yet another example of the appeal of Barack. We were well over 100,000 friends, and the burden of administering such a profile became immense.

    Unfortunately, at that point, Joe changed the password on the profile, and didn't give us the new one, like he had done in the past. This changed the previous dynamic, and we could no longer access the profile at a moment's notice if need be. We asked Joe what was needed to restore access, and subsequently we received the list of itemized financial requests that have been discussed elsewhere.



    Parent
    That does change things considerably (none / 0) (#16)
    by Big Tent Democrat on Wed May 02, 2007 at 08:36:01 PM EST
    If Anthony raised the issue of compensation, (none / 0) (#19)
    by Geekesque on Wed May 02, 2007 at 10:19:19 PM EST
    that would likely doom him at a UDRP proceeding.  

    Otherwise, he'd probably win.

    But, this is Myspace, which has its own internal purposes and principles.

    Parent

    i'm not really clear on what (none / 0) (#13)
    by cpinva on Wed May 02, 2007 at 06:43:53 PM EST
    the first amendment has to do with this, unless the arbitration panel is a governmental agency.

    aside from that, just kind of a dumb pr move on obama's part. gee, i am shocked that a politician would make a dumb pr move!

    ICANN is a creature of government (none / 0) (#14)
    by Big Tent Democrat on Wed May 02, 2007 at 06:51:21 PM EST
    State action is involved.

    Parent
    Cashin' in. (none / 0) (#17)
    by Che's Lounge on Wed May 02, 2007 at 09:49:21 PM EST
    "Gettin' my mains", as Tommy Franks would say.

    Extortion is such a nasty word. I prefer enterprising. But he failed anyway. Has it been 15 minutes yet?

    UDRP arbitrations are all over the (none / 0) (#18)
    by Geekesque on Wed May 02, 2007 at 10:16:49 PM EST
    place when it comes to stuff like this.

    Generally fan sites get treated with some leniency.  Especially if they're being used and there's no profit-taking.

    The issue of who raised the issue of $$ would be crucial.  If you own a domain name and get a c&d letter, DO NOT OFFER TO SELL THE DOMAIN NAME.  That's a surefire way to lose.

    Absent that issue, I think Anthony would win a UDRP, since Obama would have to show bad faith at the time the domain name was registered.