GENEVA, Switzerland—The World Internet Property Organization (WIPO) has spoken, denying Glenn Beck’s attempt to ban a website that turned the now famous internet meme “Did Glenn Beck Murder and Rape a Young Girl in 1990?” into a satiric website with the none-too-subtle name, GlennBeckRapedandMurderedaYoungGirlin1990.com. The answer to the above question, by the way, is no.
Beck, of course, is a personality who also lives to provoke people, including those who detest him and those who see him as the last best hope for America. Few fall into whatever middle-ground reaction might be elicited by the self-professed “rodeo clown” who seems hell-bent on perfecting his impression of a post-breakdown Howard Beale.
It’s either love or hate with the guy, which is exactly the type of polarization he cultivates. Which makes it somewhat strange—perhaps even indefensible—that the Fox phenom would have taken such umbrage with the website launched in September that brought farcical attention to an incident in his past that…never happened.
But sue he did, and the resulting decision is not only a stunning reaffirmation of the fact that political parody is protected as free speech under the U.S. Constitution, but also a clarification on the use, and abuse, of trademarks in domains.
Beck’s attorneys had argued that Isaac Eiland-Hall, the owner of www.glennbeckrapedandmurderedayouggirlin1990.com, acted not only in bad faith, but also without the right or legitimate interest, when he created the website and that in doing so he intentionally defamed and damaged Beck’s reputation and tarnished and diluted his trademark. According to Marc Randazza, Eiland-Hall’s attorney and a veteran adult industry lawyer, the fact that WIPO declined to accept Beck's “pretty creative argument” meant that a rush by would-be censors to WIPO's offices had been narrowly averted.
“Under the Uniform Domain-Name Dispute-Resolution Policy (UDRP), if you register and use a domain in ‘bad faith,’ then that domain can be turned over to the complainant,” Randazza told AVN. “Effectively, this shuts down a criticism site. However, ‘bad faith,’ has always been interpreted to mean in the trademark context—not in the defamation context. Had Beck succeeded, it would have meant that anyone looking to do an end run around the First Amendment could just bring a trademark claim instead before WIPO (at least if a domain name was involved) and then get the criticism taken down.”
Interestingly, WIPO did agree that the use of the name “Glenn Beck” in the satiric domain is “confusingly similar to Complainant’s mark for purposes of the Policy (UDRP), but that fact alone did not mean that Eiland-Hall did not have the right or legitimate interest to do so. The court concluded, in fact, that in using Beck’s name in the disputed domain name, Eiland-Hall “engaged in legitimate non-commercial and fair use” of the mark, and further, that the intent to parody and even humiliate Beck was an uninhibited right under the Constitution, as long as the claims made were either true or—as in this case, that he raped and murdered a woman in 1990—clearly identified on the site as untrue.
“Were we to hold otherwise,” the court said, “there can be little doubt that political cartoonists and satirists would be subject to damages awards without any showing that their work falsely defamed its subject.”
This is what WIPO meant when it used the term “breathing space,” a concept discussed in New York Times v. Sullivan and its progeny, according to Randazza.
“What it means is that we have the right, as Americans, to criticize and to mock and make fun of the wealthy and the powerful,” he told AVN. “In fact, we have a greater right to mock the powerful than we do to mock our fellow citizens. This is in sharp contrast to many other countries where the more powerful are more insulated from criticism. But, if we are going to have free speech—wide open and robust debate—we need to have the freedom to mock, even when that mockery isn't particularly civil.
“That’s why Larry Flynt got to call Andrea Dworkin a ‘Shit squeezing sphincter’ and a ‘Crybaby who can dish it out, but can't take it.’ Hmmm...kinda like a talk show host that we know.”
Randazza is equally unimpressed with Beck’s decision to take his issue to an international body in the first place.
“To be candid, we found the fact that Mr. Beck filed this action at all to be most puzzling,” he wrote, in a Sept. 29 letter to Beck’s attorney, Matthew Kaplan, “although it was obvious why he did not file in a U.S. court given the law surrounding nominative fair use of trademarks as fully explained in our brief. Naturally, a defamation claim as alluded to in Mr. Beck’s complaint would be humiliatingly doomed in a U.S. court as well. … Accordingly, we found it to be most ironic that Mr. Beck, facing the fact that the U.S. Constitution would stand in his way in a U.S. court, sought to bring this action before an international domain name arbitration panel. On March 30, 2009, he said on his show:
“'Let me tell you something. When you can’t win with the people, you bump it up to the courts. When you can’t win with the courts, you bump it up to the international level.'”
In a final nod to fair play and in an apparent hope that the whole episode will finally end, Eiland-Hall sent a letter to Glenn Beck on Nov. 6 relinquishing the disputed domain to him, and used the opportunity to sling a last non-satiric message his way.
“It bears observing that by bringing the WIPO complaint, you took what was merely one small critique meme, in a sea of internet memes, and turned it into a super-meme,” he wrote. “Then, in pressing forward… you turned the super-meme into an object lesson in First Amendment principles.
“It also bears noting, in this matter and for the future, that you are entirely in control of whether or not you are the subject of this particular kind of criticism,” Eiland-Hall continued. “I chose to criticize you using the well-tested method of satire because of its effectiveness. But, humor aside, your rhetorical style is no laughing matter. In this context of this WIPO case, you denigrated the letter of First Amendment law. In the context of your television show and your notoriety, you routinely and shamelessly denigrate the spirit of the First Amendment. The purpose of the expressive freedoms embodied in the First Amendment is not to simply permit the greatest possible scope of expression, but also, in doing so, to strive for excellence in the conveyance of ideas. Rather than choosing to strive for excellence and civic contribution, you simply pander to the fears and insecurities of your audience. And in the process, you do them, and us all, a great deal of harm.”
Then, noting he has no more use for “the actual scrape of digital real estate you sought,” Eiland-Hall provided the redacted user name and password to the site for Beck to do with what he wished. The site, predictably, is no longer live.