FC: Pacifica critics win tussle, thanks to politech, Public Citizen

From: Declan McCullagh (declanat_private)
Date: Thu May 10 2001 - 21:52:47 PDT

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    I generally don't take such liberties, but permit me to indulge in a bit of 
    self-praise. Paul and Public Citizen learned about the embattled 
    savepacifica.net sites through a pair of politech messages in February:
    http://www.politechbot.com/p-01728.html
    http://www.politechbot.com/p-01729.html
    
    That prompted them to step in and represent savepacifica.net and its 
    brethren from a threatened lawsuit and, well, you can read the rest below.
    
    Too often this list, others like it, and news reports end up documenting 
    abuses of power and censorship attempts. It's heartening to know that -- 
    even if it's only once in a while -- freedom wins a round.
    
    -Declan
    
    *********
    
    Date: Thu, 10 May 2001 12:49:51 -0400
    From: "Paul Levy" <PLEVYat_private>
    To: <declanat_private>
    Subject: Victories for free speech in Internet Trademark cases
    
    Here are two press releases that describe in more detail two nice wins for 
    the free speech rights on the Internet.  One of them involves the threat of 
    cybersquatting litigation by Pacifica Foundation against several different 
    groups that created web sites with the names savepacifica.net, wbai.net and 
    freewpfw.org.   We originally connected with these clients as a result of 
    your publicized the problem in your list.  As soon as we entered the case, 
    Pacifica started hemming and hawing about whether they were going to follow 
    through on their threatened litigation, and this week we finally got word 
    that they are throwing in the towel.  http://www.citizen.org/press/pr-lit35.htm
    
    Equally interesting, and maybe even more important, is the outcome in a 
    case we have been litigating on behalf of a web site that criticizes Ricart 
    Automotive, a large dealer in Columbus, Ohio.  Litigating with the 
    advantage of surprise against a local lawyer, Ricart obtained a preliminary 
    injunction on a claim of cybersquatting, in a case that all of their 
    lawyers have been touting as a leading accomplishment on their firm web 
    sites.  http://www.arterhadden.com/attypdf/JRE.pdf; 
    http://www.keglerbrown.com/newsletters/litigation/main.html#firm But once 
    we entered the case, they apparently lost their taste for the litigation.
    
    So, here we are, the company has been billed nearly $100,000 (we know this 
    because, in light of their inclusion of an attorney fee claim, the judge 
    required them to send the defendant regular notices of how much money was 
    being billed), and it has given up its preliminary injunction in return for 
    a seven week window until the defendant can register new domain names 
    attacking the company.  And the web site remains up (at 
    www.columbusconsumer.com).  You have to wonder, even if they had won the 
    case in its entirety, would the relief have been worth 
    $100,000?http://www.citizen.org/press/pr-lit36.htm
    
    A real cautionary tale for companies that are considering the filing of 
    this sort of law suit.
    
    
    
    
    Paul Alan Levy
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000
    http://www.citizen.org/litigation/litigation.html
    
    **********
    For Immediate Release:                                  Contact: Paul Levy 
    (202) 588-1000
    May 10, 2001                                                    Angela 
    Bradbery (202) 588-7741
    Pacifica Backs Off Threat to Sue; Critics Can Keep Web Sites
    
    Pacifica Foundation Had Threatened to Sue to Force Groups
    To Take Down Sites Until Public Citizen Intervened
    
    WASHINGTON, D.C.  In what is a point on the scoreboard for First Amendment 
    rights, Pacifica Foundation has decided against suing to force three groups 
    to dismantle Web sites critical of Pacifica.
    
    The Foundation in February threatened to sue the groups, with whom it is 
    embroiled in a controversy over the radio network. The Foundation demanded 
    that Friends of Free Speech Radio in California, WBAI Listener Network in 
    New York and the Free WPFW group in Washington, D.C., abandon the use of 
    their domain names and relinquish the rights to those names by Feb. 19 or 
    face legal action.     In response, Public Citizen, which champions free 
    speech rights on the Internet, announced it would represent the groups if 
    Pacifica sued.
    
    In a recent phone conversation, though, an attorney for Pacifica told 
    Public Citizen Litigation Group attorney Paul Alan Levy that Pacific had 
    decided not to sue. Levy today sent the attorney, Tanya Vanderbilt, of 
    Epstein Becker & Green, P.C. in Washington, D.C., a letter confirming the 
    conversation. A copy is available at 
    http://www.citizen.org/litigation/briefs/VandLetter.pdf.
    
    "Companies are starting to learn that they can't bring these cases, because 
    they're going to lose," Levy said. "The message is slowly getting out that 
    free speech rights on the Internet are sacrosanct."
    
    The creators of the Web sites (savepacifica.net, wbai.net and freewpfw.org) 
    are embroiled in a controversy stemming from a conflict between Pacifica's 
    management and station employees and members over the network's future. 
    Pacifica had claimed that the use of the Web site domain names was a 
    trademark infringement and could confuse people searching the Web for 
    Pacifica's site. The foundation also claimed that the Web sites restricted 
    Pacifica from conducting business on the Internet under its own name.
    
    Those claims are baseless, Levy said. Trademark infringement occurs when a 
    company's name is used in a misleading way to profit from consumer 
    confusion, which is not the case here. Also, the First Amendment protects 
    the kind of speech posted on the Web sites, he said.
    
             "Pacifica threatened to bring this suit because it wanted to 
    burden its critics with the time and expense of preparing a legal defense," 
    said Robbie Osman, member of Friends of Free Speech Radio. "I would have 
    hoped that before the Foundation threatened to sue, someone in the Pacific 
    national office might have remembered that promoting fair and open debate 
    has been at the very heart of Pacifica's mission since it was founded. By 
    threatening this baseless suit, the Foundation has proved the most damning 
    charge their critics have made against them."
    
    Added Patty Heffley of WBAI Listener Network, "After observing the Pacifica 
    Foundation up close, any positive actions they take must be viewed with 
    suspicion. The good news here is that Pacifica isn't going to squander the 
    listeners' money on an unwarranted suit."
    
    ###
    
    Public Citizen is a nonprofit consumer advocacy organization based in 
    Washington, D.C. For more information, please visit www.citizen.org.
    
    **********
    For Immediate Release:                                  Contact: Paul Levy 
    (202) 588-1000
    May 10, 2001                                                  Angela 
    Bradbery (202) 588-7741
    Ricart Automotive Agrees to Settle Suit Against Web Critic
    
    Angry Ohio Customer Free to Create Anti-Ricart Sites This Summer
    
    WASHINGTON, D.C.  Ricart Automotive has agreed to drop a lawsuit it filed 
    against an  angry customer who created two anti-Ricart Web sites to log 
    customer complaints about the dealership.
    
    Ricart last year sued Ohio State University graduate student Robert F. 
    Dalton, claiming that his sites violated trademark law, and Ricart quickly 
    obtained a preliminary injunction against any use of the word "ricart" in 
    Dalton's site names. Under a settlement agreement entered into this week, 
    Ricart -- which spent nearly $100,000 on the case -- agreed to drop its 
    suit and have the injunction dissolved in exchange for Dalton agreeing to 
    relinquish the domain names of his sites, www.ricartautoripoff.com and 
    www.ricartauto.com.
    
    However, Dalton retains the right to create new anti-Ricart Web sites after 
    July 3, 2001, using the word "ricart" in any portion of the domain name 
    (except for the two relinquished domain names) and to include the Ricart 
    name in his Web site "meta tags," a form of Internet code used to describe 
    Web sites in a way that helps people using search engines locate Web pages 
    in which they may be interested. For now, Dalton has posted the information 
    on his sites at  www.columbusconsumer.com.
    
    "Clearly this is a victory for Mr. Dalton, who has every right in the world 
    to post his thoughts about Ricart Automotive on the Internet," said Paul 
    Alan Levy, an attorney with Public Citizen Litigation Group who is 
    representing Dalton. Public Citizen has represented other Internet critics 
    in similar First Amendment cases. "The First Amendment clearly protects the 
    kind of criticism Mr. Dalton has posted."
    
    Dalton created the Web sites after a dispute with the dealership over a 
    1997 Ford F-150 pickup truck he leased. Dalton felt cheated in the deal and 
    has said misrepresentation were made to him about the warranty and his 
    ability to return the truck. His site contains a wealth of information 
    about complaints filed against Ricart with the Ohio Attorney General's 
    Office, as well as consumer information alerting people to potential scams.
    
    "This case was all about Ricart trying to keep damaging information about 
    its business practices from becoming public knowledge," Dalton said. "I 
    feel it was an honor and a privilege to convey the collective voices of 
    Ricart's victims to a larger audience, and I am grateful for my lawyers' 
    assistance in accomplishing that."
    
    
    The case is yet another affirming the rights of angry consumers to post 
    their gripes on the Internet. In one recent case, Alitalia dropped its case 
    against a passenger who created a Web site to air his gripes about lost 
    luggage. In another recent case, Pacifica Foundation decided not to carry 
    out its threat to sue several groups that created anti-Pacifica sites.
    
    Dalton is also represented by Columbus consumer lawyers Eric Willison and 
    Alvin Borromeo.
    ###
    
    Public Citizen is a nonprofit consumer advocacy organization based in 
    Washington, D.C. For more information, please visit www.citizen.org.
    
    ***********
    
    
    
    
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