[I invite the attorneys for the Washington Post, copied above, to reply. I will forward their response unedited. --Declan] --- Date: Wed, 19 Feb 2003 12:18:37 -0500 From: "Paul Levy" <PLEVYat_private> To: <declanat_private> Cc: <wpurdyat_private>, <strahanat_private>, <Maya.Alexandriat_private>, <PCaromeat_private>, <Thomas.Olsonat_private> Subject: Purdy domain name case Public Citizen has asked US Court of Appeals for the Eighth Circuit to allow it to file a brief urging it to uphold the initial order issued by the district court against William Purdy for posting anti-abortion campaign material online using domain names that incorporate the trademarks of the Washington Post, Coca-Cola and other companies. After thinking long and hard about this situation, and studying the record carefully, we concluded that Purdy was not using the trademarks in any fair or appropriate way to post his criticisms of the trademark owners, but rather was unfairly using their trademarks to call attention to his views about abortion. We have argued to the court of appeals that the injunction should not, however, be affirmed on the broad grounds argued by the plaintiff companies, but rather on the ground that the specific uses that Purdy had made of the trademarks through the time of the injunction were sufficiently abusive to warrant equitable relief. Therefore, we do not believe that Purdy can properly invoke the sorts of arguments that we used to win a victory for Hank Mishkoff against Taubman Company earlier this month. A copy of the brief is available on our website at http://www.citizen.org/documents/PurdyAmicusBrief.pdf That being said, we have grave qualms about whether the plaintiffs in this case are getting carried away by their outrage at Purdy in their continued pursuit of some of the domain names that he has registered more recently. We see no likelihood whatsoever that any Internet user is going to type such domain names as WashingtonPostChristian.com or WashingtonPostJesus.com into their Internet browser and so be misled to Purdy's anti-abortion websites. To be sure, these names include the Post's trademark and do not include critical words, and in that respect may appear to violate some clauses of the preliminary injunction (because the injunction applies only to names that are "confusingly similar" however, the injunction may not actually be violated when read carefully). Purdy registered these and many other domain names for the apparent purpose of testing how far he could go without getting slapped down. Once Purdy waved the red blanket in their faces, the Post's lawyers went after Purdy for using these names, without ever thinking about whether these names posed any realistic likelihood of diverting Internet traffic through confusion over source. In this regard, it is worth noting that last summer, as his controversy with the Post and Coca-Coca was heating up, Purdy registered several additional domain names, using the names or acronyms of several non-profit organizations that support abortion rights, including the ACLU, the National Organization for Women, and Planned Parenthood, and Purdy pointed these domain names to his anti-abortion material. On July 16, you carried a message from Purdy who said he was using those organizations names because he detested their positions on abortion and knew that they would not like the content of the websites. http://www.politechbot.com/p-03764.html. (Interestingly, this message is in the court record in the case, because at least one of the Post's lawyers subscribes to your list). These groups did not rise to Purdy's bait, but simply ignored him, although I know for a fact that at least one of those groups was quite aware of what was happening (if only from your list). In retrospect, I have to wonder whether that wasn't the wiser course. The literature suggests that it is not unusual for the owners of political web sites to take advantage of the litigation filed against them to reap more publicity and more attention for their websites that they would otherwise attain. http://www.law.com/jsp/article.jsp?id=1044059430652. Have the Post and its lawyers given William Purdy exactly what he wanted - a load of public attention and the opportunity to be a martyr for his cause? I am sending copies of this email to Purdy and to the lawyers for both sides so that they can respond if they desire to do so. 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 --- From: "William S. Purdy" <wpurdyat_private> To: "Paul Levy" <PLEVYat_private> Cc: "Declan McCullagh" <declanat_private> Subject: reply to your email to Declan Date: Wed, 19 Feb 2003 12:35:05 -0600 Feb. 19, 2003 Re: Reply to Mr. Levy's email to Declan regarding his Amicus brief to Eighth Circuit Dear Mr. Levy, I don't know about anyone else, but I WILL DEFINITELY file an opposition to you motion for permission to file your brief. I was absolutely SHOCKED at the lengths you went to in citing their NON-facts as reasons why the appeals court should affirm the preliminary injunction. I can understand your argument where a company, say Hershey's, doesn't want someone to use their name JUST TO get viewers to their site - like if someone used HersheysLovesGayPorn.com - and then had a bunch of gay porn pics or something. But I do not understand how you could support a preliminary injunction that would not allow someone to have HersheysLovesGays.com - and then had on the site (with or without a disclaimer) criticisms of Hershey's company policy - or anti-gay company statements - that promoted discrimination against gays. And if their policy had contributed to some general or societal SUFFERING of gays by discrimination - i.e. some tragic murders or something - then to have the pictures of those discrimination acts on the site as well. It's called FREE SPEECH. I also don't understand how you could not know that individuals have a right to LIE or to SLANDER or LIBEL or to SATIRE someone else or a company. You don't get an injunction because what someone is saying is a lie, or is a satire, and you know that. The court allows the person to say it, and the company can sue the speaker for damages under the correct tort. The court can't implore a "truth" test to decide whether you can say it or not! So what about the two SAYS domain names of the nine? I have a right to title a page or to say, "ACLUSAYS.com" and then put words in their mouth as though it comes from them - or more importantly what in my opinion they SHOULD be saying. It's called satire. In fact I have such a domain name, and the ACLU refused to sue me because they said that the way to combat speech that you don't like is WITH MORE SPEECH, not through suits aimed at stopping the speech. They got it right and again, it's called FREE SPEECH. And your statements AS FACT in your arguments that I am a proven cybersquatter were absolutely shocking to me. If you had really looked into my case with the BN - or even asked me instead of relying on their false statements - you would have learned that it was ME, not the BN who owned the U.S. trademark registration for BNSF. We were in a trademark dispute, not a domain name dispute. But I did have BNSF.org and they had BNSF.com. It was me, not them who asked the court to give ME BNSF.com from them. I took them to court over the domain their domain name. Their response was to get my federal registration VOIDED by a U.S. Texas judge. Then I then filed suit against them for violation of my Common Law trademark rights. They counter sued. The U.S. Judge here in Minnesota ruled that I did have common law rights BUT that they were secondary to the BN's common law rights in the mark "BNSF" because my use was Non-Commercial - even though he ruled I had actually used it first. We had both agreed ahead of time that whomever he ruled had the first common law rights would get the BNSF.org and the BNSF.com. So after he ruled that they had first use rights to the common law trademark rights to the mark "BNSF", he then transferred the BNSF.org to them, citing our agreement. I appealed his ruling - that their common law rights went ahead of me because their use was commercial and mine was not commercial. The Eighth Circuit affirmed the lower court ruling regarding my use being "second" user because my first use had been non-commercial use. That was it - the word cybersquatting NEVER entered the briefs, or even in the lower court memorandums. So stating that I am a known cybersquatter is just plain b.s. - b as in B, and s as in S. It was made up argument, made up "fact", and made up NAME CALLING by the Post to get the judge to issue the ridiculous injunction it did - and to "protect" them from MY SPEECH about them. And you then you used their made-up name calling too - as a reason to for them to affirm the ridiculous injunction. Also, how can you say in your brief that I have blatantly disobeyed the injunction. If you look at the real facts, you will see that I NEVER ONCE registered an "identical" domain name after the July 23, 2002 injunction was issued. The only "disobedience" that they or you can possibly point to is registering what they describe as "confusingly similar" domain names - like WashingtonPostHARDASS.com, WashingtonPostFETUS.com, WashingtonPostSACRILIGE.com and a bunch more. If you think those are "confusingly similar" then you join them in their absolute ridiculousness. According to them however, and now you, I BLATANTLY DISOBEYED the injunction to register and use those very domains. If you had really looked, you would have found that I NEVER ONCE registered the same domain name - once the court ruled that a particular domain name is/was "confusingly similar" and therefore prohibited - i.e. never registered WashingtonPostHARDASS.org after it was ruled that WashingtonPostHARDASS.com was "confusingly similar". But you guys think that because if I then dared to then register WashingtonPostDUMBASS.com, that I would be disobeying the injunction. This is laughable. You forget to read the injunction in paragraph 11 where it says I cannot register identical or confusingly similar - but the injunction DOES NOT define "confusingly similar" and the Post and the court have refused to define it or give any guidelines. And thus I am left to guess - or in their words and now in YOUR words - blatantly disobey the injunction if I happen to think like everyone else that WashingtonPostHARDASS.com is NOT "confusingly similar". You make very good arguments in 1 and 2 of your brief, but then say in 3 that in the case of Bill Purdy, all those arguments should be overlooked. And why? Oh yeah, because I used too small of print in my disclaimer - a disclaimer I put up after the Plaintiffs alerted me to their objection to my using their name in my anti-abortion campaign. A campaign by the way that was directed at them SPECIFICALLY because of their editorial campaign FOR ABORTION. But even if that is all correct, and the injunction on the first nine domain names is proper, how can you possibly argue that the court's goofy paragraph 11 regarding future domain names that I could register and use is proper????? Oh yeah, because I made some public statements that I would punish the Plaintiffs for their prochoice positions! Yeah, that is a really good argument to prohibit speech!!! And then there is "Purdy's telephone call to the Post's lawyers, demanding that they provide him with space on the editorial page............................" Tell me Mr. Levy, where was that "FACT" ever decided? What if I told you that I never demanded any such thing, that it was made up by the lawyers as to what I said? What if I told you that NO TESTIMONY, spoken, written, under oath, not under oath - NO AFFIRMATIVE TESTIMONY what so ever - was ever entered into the record regarding that alleged phone call, and that alleged demand by me? But hey, if the Plaintiffs' say so in their memorandum to the court, then it's good enough reason to accept it as fact, and another good reason for Public Citizen to argue why the injunction regarding Bill Purdy's future registration and use of unknown "confusingly similar" domain names must be affirmed. And of course, don't forget "Purdy's history of cypbersquatting is further established by the 'previously affirmed cybersquatting judgment against him..........." Never mind that such a "cybersquatting judgment against him" was NEVER issued against him, or EVER affirmed by Eighth circuit. If the Plaintiffs said so in their argument statements, then it's good enough for Public Citizen to argue it too - to stop Bill Purdy from SPEAKING about the truth of abortion (the graphic pictures of aborted babies - the real truth of what abortion is) and the Washington Post's, Coca-Cola's, Pepsi's, and McDonalds editorial and financial support for that crime against humanity. You state, "We see no likelihood whatsoever that any Internet user is going to type such domain names as WashingtonPostChristian.com or WashingtonPostJesus.com into their Internet browser and so be misled to Purdy's anti-abortion websites." No shit Sherlock! This makes the point about that there is NO confusion of SOURCE or origin. And the same can be said about WashingtonPostSAYS.com. Nobody is going to type that name into their browser - exactly why there IS NO confusion about the source. It's a statement - a satirical statement about what the Washington Post SHOULD SAY - that Abortion Is Murder - instead of what they do say, that Abortion IS NOT Murder - that Abortion is Choice and etc. Again, it's called FREE SPEECH. Mr. Levy, I still have FAITH in you, and in Public Citizen. Your organization was founded and is supported by one of the greatest individuals of our time, Ralph Nader. I know you HATE my message, and that you HATE my methods of speaking my hated message on the internet, i.e. the graphic pictures. But the message, or the method of speaking my message, must NOT be allowed to cloud clear thinking about First Amendment principles at issue here. You speculate at the end of your brief that, "The names hypothesized above (WashingtonPostABORTS, WashingtonPostHARDASS, TheWashingtonPostCHRISTIAN etc.) scarcely pose a genuine likelihood of confusion for the plaintiffs, and would, indeed, seem to be a fair use of their trademarks to describe plaintiffs' position on an issue of national importance. Should Purdy bring such names to the attention of the district court with a proposed nonconfusing website, he might well make a strong case for modification of the injunction, in light of the underlying principles of trademark law against the backdrop of the First Amendment in deciding whether to make the injunction final regarding those names." Gee, that is nice of you and Public Citizen to grant that I may have a First Amendment right to register and use those domain names!!!!!!!!!!!!!! I have to tell you Mr. Levy, that I think that as much as you hate my message, and as slow as you are to accept my NOVEL approaches to speaking my hated message, I think that in time you will rewrite no. 3 of your brief. One and two of your brief were right on, but you fail to apply those wonderful arguments in 1 and 2 to me, Bill Purdy - and I believe all because you hate the message that I speak. But if you are properly going to protect ALL users of the internet, all speakers of the internet, you will sooner or later have to properly defend the FIRST AMENDMENT, even as it applies to prolifers like myself. I remain GRATEFUL for your interest in the case, and for the time and energy you have devoted to the issues involved. I will be filing an appeal of the contempt motion(s) and so those domain names mentioned above WILL be before the Eighth Circuit. You and Public Citizen will then have another opportunity to address those domain names mentioned above to the Eighth Circuit, if you so choose. I will continue to keep you informed about this case and regarding these very important First Amendment issues, and I thank you and Public Citizen for all the fine work you do on behalf of all of our First Amendment Rights. Thank you, Bill Purdy --- Date: Wed, 19 Feb 2003 13:43:22 -0500 From: "Paul Levy" <PLEVYat_private> To: <wpurdyat_private> Cc: <declanat_private> Subject: Re: reply to your email to Declan I do not intend to engage in a running debate on the list. Declan, I certainly suggest that you post both his message and mine, along with anything that the Wilmer lawyers choose to write........ 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 ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Like Politech? Make a donation here: http://www.politechbot.com/donate/ ------------------------------------------------------------------------- Declan McCullagh's photographs are at http://www.mccullagh.org/ -------------------------------------------------------------------------
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