Beck v. Eiland-Hall
Encyclopedia
Beck v. Eiland-Hall is a case filed before the World Intellectual Property Organization
(WIPO) in 2009 by political commentator Glenn Beck
, concerning the satirical
website "GlennBeckRapedAndMurderedAYoungGirlIn1990.com". The site was created by Isaac Eiland-Hall as a parody
of Beck's style of commentary. The site name came from Internet discussions which were based on a joke originally used by comedian Gilbert Gottfried
at a 2008 comedy roast
of Bob Saget
, where Gottfried jokingly implored listeners to disregard the (non-existent) rumor that his fellow comedian rape
d and murdered a girl in 1990. Internet posters contrasted the meme with Beck's style of arguing, by requesting Beck "prove that he didn't" commit the act in question. Eiland-Hall created a website about it, which launched on September 1, 2009, and had 120,000 page loads within its first 24 hours.
Attorneys representing Glenn Beck's media company Mercury Radio Arts requested the domain registrar of Eiland-Hall's website to delete the site. They filed a complaint to the WIPO under the Uniform Domain Name Dispute Resolution Policy (UDRP) asserting that the domain name of the website was itself defamatory and claimed trademark over the domain name for its use of "Glenn Beck". Marc Randazza
represented Eiland-Hall and filed a response brief to WIPO comparing the case to the U.S. Supreme Court
case Hustler Magazine v. Falwell
, and asserted that the website's domain name was "protected political speech", and "satirical political humor". The brief explained the connection between the website and their view on Beck's style of interviewing, where he asks his guests to prove a negative. Randazza asserted that Beck's action of going to the WIPO in an attempt to get the website taken down was in contradiction to his prior statements saying he prefers United States law over international law
.
Randazza sent a letter to Beck's attorneys, requesting that Beck stipulate to the U.S. Constitution
during the WIPO case. Beck filed a supplemental filing in the case, and argued that the domain name was misleading and could lead individuals to believe it contained factual information rather than criticism. Eiland-Hall filed a surreply which said that Beck "attempted to silence a critic by circumventing (and thereby devaluing) the First Amendment". On October 29, 2009, the WIPO ruled against Beck, concluding that Eiland-Hall was making a political statement through use of parody in a "legitimate non-commercial use" of the Glenn Beck mark. Eiland-Hall wrote a letter to Beck in which he voluntarily turned over ownership of the domain name. He kept the website active at GB1990.com and didglennbeckrapeandmurderayounggirlin1990.com.
Commentators analyzed Beck's actions with respect to the "Streisand effect
", and noted that Beck's actions with regard to the website have served to increase attention to the site itself. Representatives of Public Citizen
, the Electronic Frontier Foundation
, and the Citizen Media Law Project agreed that Beck's trademark claim in his complaint over the website was "preposterous". A journalist for The First Post
observed that Beck's claim that a website's domain name was itself defamatory "looks like a first in cyber law". After the WIPO ruling, Online Media Daily noted that a ruling in Beck's favor may have encouraged other U.S. subjects of satirical websites to circumvent the First Amendment to the United States Constitution
by taking claims to WIPO rather than airing them in U.S. courts. The assistant director of the Citizen Media Law Project commented on the conclusion of the case, "It's good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution."
discussion community Fark
applied a joke originally used by comedian Gilbert Gottfried
at a 2008 comedy roast
of Bob Saget
, to instead refer to Beck. At the roast of Saget, Gottfried had jokingly implored listeners to disregard the (non-existent) rumor that his fellow comedian "raped and killed a girl in 1990". Gottfried repeatedly warned the audience at the roast not to spread the rumor; which did not exist prior to the comedian's pronouncements. Mediaite
reported that the Internet group "Anonymous
" was associated with the spread of the meme
. The internet posters contrasted the meme with Beck's style of arguing, by requesting Beck "prove that he didn't" commit the act in question. The meme spread to social media websites including Encyclopedia Dramatica
, Reddit
, Yahoo!
, Answers.com
, YouTube
, Twitter
, and Digg.com. A variation of the Googlebomb technique was used, to have Google
give "Glenn Beck murder" as a search suggestion when searching for "Glenn Beck"; Google later censored this suggestion.
Isaac Eiland-Hall, a 34-year-old computer science
student in Panama City
, Florida, saw the discussion on Fark using the Gottfried joke applied to Beck and created a website about it as a parody of Glenn Beck's style of political commentary. Eiland-Hall used the domain name registrar eNom
for his site. The site was launched on September 1, 2009, and received over 120,000 page loads within its first 24 hours. The website asserted it did not believe the charges to be true. Eiland-Hall wrote on the website, "We are definitely accusing Glenn Beck of using questionable tactics in order to spread his message and garner higher ratings. You see, we believe Beck uses tactics like the top part of this site ... and he uses them with no disclaimers, with all apparent seriousness."
Originally, the website displayed a small text disclaimer at the bottom stating that the site was satirical. Eiland-Hall later placed two disclaimers at the top of the site which prominently described it as a form of parody. The disclaimer at the top of the website's main page stated: "Notice: This website is 100% parody", and it included a link from the top to a larger disclaimer at the bottom of the page. The website stated, "But we think Glenn Beck definitely uses tactics like this to spread lies and misinformation". This statement was a criticism of Beck for sometimes challenging those he opposes to prove a negative. The disclaimer emphasized this last point, stating: "Read the last sentence again. That's the point. Read it a third time..." Eiland-Hall told Politics Daily
: "Based on the energy of that first Fark thread where it all began – where it started before I got involved – it seems to be a cathartic release of frustration for many, including myself. So I suppose that makes it worth it, if nothing else." In an interview with Ars Technica
, Eiland-Hall stated "just felt right" to create the website. He said it was "using Beck's tactics against him", and a manner of "directing all this frustration" around Beck's form of commentary into actions. Eiland-Hall's website inspired copycat parodies.
The second letter to NameCheap stated: "Despite our letter yesterday demanding that you delete the Defamatory Domain, suspend and/or terminate your provision of WhoisGuard privacy protection services to the unknown individual who sought to register the domain, and provide us with information identifying the unknown individual, we note that as of Friday, September 4, 2009 at approximately 6:35 EDT, the Defamatory Domain remains active." The domain registrar changed the nameservers of the website without telling Eiland-Hall. After Eiland-Hall contacted the registrar, he was permitted to move the nameservers back. Eiland-Hall subsequently registered alternate domains, including "DidGlennBeckRapeAndMurderAYoungGirlIn1990.com", and "gb1990.com".
In an interview with Gawker on September 9, 2009, Eiland-Hall stated that Beck's attorneys "have gone after the domain registrar, the hosting service, and even the data center that houses the servers on which his site lives". "They basically tried to contact every level to shut it down. My hosting service isn't happy with the situation, but they're standing by me until they get a court order," said Eiland-Hall. He told Gawker that he wanted his identity to remain anonymous. Gawker reported that they attempted to obtain a statement from Beck: "We contacted Beck's personal publicist, who declined to comment but confirmed that Beck believes the site to be defamatory and is trying to get it taken down."
(WIPO) under the Uniform Domain-Name Dispute-Resolution Policy
(UDRP), against the privacy service for Eiland-Hall's website. WIPO is a Switzerland
-based agency of the United Nations
. The rules of WIPO's Arbitration and Mediation Center were created by the Internet Corporation for Assigned Names and Numbers (ICANN). The privacy service for the website revealed the identity of the site's owner in response to Beck's complaint.
Beck's complaint asserted that Eiland-Hall "is attempting to mislead the public regarding the nature, origin and affiliation of the Web site". Beck argued that the domain name of the website could be confused with his trademark
, "Glenn Beck". The complaint described the website's domain name as "defamatory" and asserted it "infringes on Beck's trademark interest in his own name". Beck did not claim libel or defamation as point in the complaint itself, which instead focused on the legal issue of trademark. The complaint asserted that the website was "plainly libelous, patently false, not authorized by Mercury or Beck, and is likely to cause confusion for consumers".
Beck's complaint asserted that the very nature of the domain name of the website itself was an example of a bad faith registration. The complaint argued that Eiland-Hall could have no legitimate interests or rights to the website's domain name. As of September 2009, Beck was still in the process of trademarking use of his name for "goods and services", including usage of the name "Glenn Beck" on merchandise. Eiland-Hall told The Daily Beast
, "I was a little surprised that Beck, of all people — after making such a big deal about how international bodies should never be able to trump the U.S. Constitution — would take this to an international organization. But as I felt confident I would win, I wasn't too worried about it."
lawyer Marc Randazza
to represent him. According to Randazza, Eiland-Hall sought out legal representation after receiving "threatening letters" from lawyers representing Beck. On September 28, 2009, Randazza filed a 17-page response brief on behalf of his client. The response brief asserted the website's domain name is "protected political speech", and "satirical political humor". According to Randazza, the website was being used for satire purposes, and the website's owner was not attempting to make a profit from such satire.
Randazza wrote: "Only an abject imbecile could believe that the domain name would have any connection to [Beck]". Randazza wrote that the website's domain name could not be confused with the "Glenn Beck" trademark, except to "A moron in a hurry
". This phrase refers to a legal concept where a reasonable person could become confused or deceived.
He wrote: "We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent's website wondering 'where did all the race baiting content go?'" Randazza further explained the "moron in a hurry" argument, with respect to this case: "It is specious at best for Mr. Beck to assert that his fans, or the public as a whole, would confuse Respondent’s website with Mr. Beck himself — unless of course it is Mr. Beck’s view that his fans and the average internet user are in fact hurried morons."
Randazza asserted that Beck had not sufficiently showed he has trademark rights over his name, "Glenn Beck". The response asserted that Beck was actually trying to have the website taken down because he did not appreciate the criticism. "We are here because Mr. Beck wants respondent's Web site shut down. He wants it shut down because Respondent's website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck's very rhetorical style," wrote Randazza in the response brief. Randazza argued that Eiland-Hall does have legitimate rights to his website's domain name because of its use as criticism of Beck and as part of the Internet meme that had started on the Fark website. "The Web site is a legitimate criticism site, consists of political satire
, and thus the Respondent has legitimate rights in the domain name. Mr. Beck's attempt to censor this criticism is improper and should be rejected," wrote Randazza in the brief.
The brief gave a brief history of Internet phenomena, including video parodies of the German film Downfall
, memes based on the film 300
, "Hitler Hates Kanye West", "All your base are belong to us
", "Mr. Spock Ate My Balls", and the "Gerbil story" involving Richard Gere
. Randazza traced the website's origin, explaining the internet meme's roots in the Gilbert Gottfried joke: "The meme is a parody of from Glenn Beck’s own argumentation style mated with a Gilbert Gottfried routine performed during the Comedy Central Roast of “comedian” Bob Saget. During Gottfried’s speech, he kept repeating (in his trademark nasally voice) that there were rumors that Bob Saget had raped and killed a girl in 1990...". Randazza then spelled out the "humor equation" of Eiland-Hall's website: "The humor equation is simple: (Outrageous Accusation) + (Celebrity) + (Question Why the Celebrity Does Not Deny the Accusation) = (Confirmation of the Falsity of the Accusation + Laughter)".
The Eiland-Hall response brief cited a clip of Beck interviewing United States Congessman
Keith Ellison
, a Muslim
from Minnesota
. Beck requested that Representative
Ellison prove he was "not working with our enemies". "No offense and I know Muslims, I like Muslims, I've been to mosque
s, I really don't think Islam is a religion of evil. I think it's being hijacked, quite frankly. With that being said, you are a Democrat. You are saying let's cut and run. And I have to tell you, I have been nervous about this interview because what I feel like saying is, sir, prove to me that you are not working with our enemies. And I know you're not. I'm not accusing you of being an enemy. But that's the way I feel, and I think a lot of Americans will feel that way," Beck had said to Ellison. This was an example of Beck's style of interviewing, where he challenges his guests to prove a negative, to "prove you didn't do...". Randazza concluded "Quite simply, Beck’s shtick is simply a cheap imitation of Gilbert Gottfried, sans the humor."
Randazza's argument compared the case to the Supreme Court of the United States
case Hustler Magazine v. Falwell
. Randazza wrote: "Beck’s skin is too thin to take the criticism, so he wants the site down. Beck is represented by a learned and respected legal team. Accordingly, it is beyond doubt that his counsel advised him that under the First Amendment to the United States’ Constitution, no action in a U.S. Court would be successful. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Accordingly, Beck is attempting to use this transnational body to circumvent and subvert the Respondent’s constitutional rights." In the legal brief, Randazza pointed out that Beck's action of going to the WIPO in an attempt to get the website taken down was in contradiction to his prior statements saying he prefers United States law over international law
. "[Beck’s] got good lawyers. I’m very impressed with his attorneys. He’s got to know if he tried to file it in U.S. courts he would have gotten creamed," said Randazza in a statement in Orlando Weekly
.
On September 29, 2009, Randazza requested that Beck voluntarily ask that the First Amendment to the United States Constitution
be applied to the arbitration case, despite its international setting. Randazza made this request because Beck's political commentary favored the United States Constitution
over international law
. Randazza's September 29, 2009 letter to Beck's attorneys cited statements by Beck himself, where Beck indicated he preferred United States law over international law. These quotes by Beck included the statement: "Once we sign our rights over to international law, the Constitution is officially dead." Randazza's letter concluded: "I hate to presume anything about anyone, but I presume that Mr. Beck will agree to this stipulation. It would be an interesting day indeed if Mr. Beck preferred to risk that a panelist would apply French
law to a case between two Americans over a matter of public discourse... I am certain that neither party wishes to see First Amendment rights subordinated to international trademark principles, thus unwittingly proving Mr. Beck's point. Lest this case become an example of international law causing damage to the constitutional rights that both of our clients hold dear, I respectfully request that your client agree to stipulate to the application of American constitutional law to this case."
On October 8, 2009, Randazza was interviewed about the case on the WPRR radio program Declaring Independence. Randazza explained why Beck did not file a libel lawsuit in the United States: "...the average citizen only has to show a low level of wrongdoing in order to prevail in a libel action. But a public figure, somebody who has purposely seized the limelight and who has access to the media, has to show something called actual malice. And that means you have to show that it was knowingly false or that it was a reckless disregard for the truth. Now, that might even seem to fit here, however, the Supreme Court has ruled that when in the context it is not really a serious statement of fact, actual malice cannot be proven." He cited as an example the Hustler Magazine v. Falwell case that was popularized in the film The People vs. Larry Flynt
.
Beck submitted a supplemental filing in the case on October 13, 2009. In Beck's supplemental filing, his attorneys asserted that the joke of the Eiland-Hall website is not obvious, and therefore the website's domain name is misleading. "While there is absolutely nothing humorous or amusing about the statement made by Respondent in his domain name that 'Glenn Beck Raped and Murdered a Young Girl in 1990,' the average Internet user finding the domain name GlennBeckRapedAndMurderedAYoungGirlin1990.com ("Disputed Domain Name") in a search would have no reason not to believe that they will be directed to a website providing factual information (as opposed to protected criticism or similar protected speech) about Mr. Beck," wrote Beck's attorneys in the supplemental filing.
Eiland-Hall surreply
On October 20, 2009, Eiland-Hall filed a surreply in response to Beck's supplemental filing. Eiland-Hall's attorney Randazza wrote in the surreply, "An average Internet user might not 'get the joke'. In fact, the average Internet user does not understand any internet memes. That’s the fun of a meme — it is an esoteric inside joke that will leave most people scratching their heads." In Randazza's conclusion to the Eiland-Hall surreply, he noted, "Glenn Beck is the butt of a viral joke. He may not get the joke, but this does not make the joke likely to confuse or subject the domain name to transfer under the UDRP. Glenn Beck's failure to understand these basic principles of law does not make the joke any less humorous, and does not make him any less of the butt. The First Amendment protects Respondent’s right to make Glenn Beck the butt, and his hypocritical attempts to squelch legitimate free speech criticism do nothing to portray himself in a more flattering light. Because his arguments do not satisfy Section 4(a) of the Policy, his request should be denied. Because he has attempted to silence a critic by circumventing (and thereby devaluing) the First Amendment — which he publically (and in this proceeding) claims to love — he should be deeply ashamed."
" usage. On the first point, Frederick M. Abbott, the WIPO arbitrator, ruled that the domain name could be confused with the "Glenn Beck" mark. On the issue of profit off Beck's mark, WIPO ruled, "While there is some evidence that at some stage third-party vendors of goods and services critical of [Beck] may have earned some income on sales of t-shirts and bumper stickers embodying political slogans based on click-throughs from [Eiland-Hall's] Web site, the panel does not believe this is sufficient 'commercial activity' to change the balance of interests already addressed." Abbott was the sole arbitrator on the WIPO panel.
Abbott concluded that Eiland-Hall had legitimate interests in the website's name, writing, "Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant’s mark under the Policy." Abbott did not make a conclusion on the third point, but stated it would not be likely that Beck would have won on the "bad faith" matter. Abbott wrote that the issue of determining whether the website is defamatory would not be an element for WIPO. The WIPO instead limited the scope of the case to a determination of whether the website registrant had engaged in "abusive domain name registration and use".
On November 6, 2009, Eiland-Hall wrote a letter to Beck, and gave him control of the domain free of charge. In the letter, he told Beck the administrative username and password for control of the domain. Eiland-Hall wrote that he had made his point, and that the act of filing the complaint exacerbated the situation for the complainant. "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. Then, in pressing forward (by not withdrawing the complaint and instead filing additional briefs), you turned the super-meme into an object lesson in First Amendment principles," wrote Eiland-Hall in the letter to Beck. He commented on Beck's actions with regard to free speech, Eiland-Hall explained his rationale for giving away the domain name, citing it was a matter of the First Amendment to the U.S. Constitution, "I want to demonstrate to you that I had my lawyer fight this battle only to help preserve the First Amendment. Now that it is safe, at least from you (for the time being), I have no more use for the actual scrap of digital real estate you sought."
Techdirt
reported on November 6, 2009 that GlennBeckRapedAndMurderedAYoungGirlIn1990.com had become a dead site. By November 10, 2009, the domain name GlennBeckRapedAndMurderedAYoungGirlIn1990.com was registered by Beck's company Mercury Radio Arts, Inc. Eiland-Hall's website was still operational at GB1990.com and didglennbeckrapeandmurderayounggirlin1990.com. He posted a notice at GB1990.com saying, "WE WON!", and wished Beck would feel better as he was then suffering from appendicitis
. In a posting to his blog, Eiland-Hall's lawyer Marc Randazza commented, "Free Speech Wins Again."
Beck did not issue a response to Eiland-Hall's letter. A representative of Beck declined to provide a comment to PC Magazine
about the conclusion of the case. Lawyers for Beck did not respond to a request for comment about the WIPO ruling from National Public Radio.
attorney Corynne McSherry and Paul Levy of the organization Public Citizen
commented on the case to Ars Technica
, and both stated Beck's trademark claim before the WIPO was "preposterous". Levy noted that domain names in and of themselves could be seen as defamatory, but the statement in the domain name would have to be deemed both false, and a statement of malice. Levy and McSherry thought that Beck's attorneys' filing may have been to ascertain Eiland-Hall's identity, which was anonymous
prior to Beck's complaint. McSherry said that "I'm not sure of any case where someone has claimed that a domain name was defamatory," and Jack Bremer of The First Post
wrote that the attempts by Beck's lawyers to claim that the domain name of the website is itself defamatory "looks like a first in cyber law".
Media commentators wrote that Randazza's legal brief was entertainingly written, including Paul Schmelzer of the Minnesota Independent
, Andy Carvin of National Public Radio, and Andrew Allemann of Domain Name Wire. Writing for Bostonist, Rick Sawyer called Randazza's legal brief "Hilarious!", and classed him among the "most hilarious legal writers" in North Shore
, Massachusetts
. Eriq Gardner of Adweek
pointed out that "this case also makes a political point", referring to Beck's style of commentary exemplified in the interview with Congressman Keith Ellison. Chris Matyszczyk of CNET News commented on the legal issues of the case, and wrote "For those of you with a purely legal bent, the papers offer some interesting trademark and First Amendment issues too. The latter revolve around the idea that given this dispute is between two Americans, it should be handled with respect to the First Amendment. As for the former, is Glenn Beck's trademark merely Glenn Beck? Or is it anything that includes the words Glenn and Beck?" Ed Brayton of ScienceBlogs
called Randazza's request that Beck agree to stipulate to United States law "pure genius", and Daily Kos
noted, "You have to understand the beautifully tight position that this puts Beck in: if he presses on further with a supranational attempt on trying to get rid of the website, he will continue to look like a gigantic hypocrite, given Beck's reported disdain for international bodies and fetishization (without understanding) of American law."
Commentators analyzed Beck's actions with respect to the "Streisand effect
". The "Streisand effect" refers to a phenomenon by which an attempt to remove critical material from the Internet backfires, instead increasing interest in that material. Jim Emerson of the Chicago Sun-Times
commented that the website's disclaimer "hasn't stopped Beck's lawyers from trying to shut down the site – resulting in more blowback and another manifestation of the dreaded Streisand Effect!" Jeffrey Weiss of Politics Daily
wrote that by taking legal action, Beck "did the one thing guaranteed to garner the greatest amount of publicity for the site". John Cook of Gawker noted that "Glenn Beck's trying to shut down their web site, ensuring that people will write about it." Mike Masnick
wrote about the case on Techdirt
, and commented about the effect of Beck's actions on the spread of the meme: "Beck would have been better off just ignoring it. Instead, in legitimizing it by trying to take it down, many more people become aware of the meme – and may start calling attention to situations where Beck (and others) make use of such tactics." Steffen Schmidt wrote of Beck's predicament in an article in the Des Moines Register
: "Although the mainstream media has avoided any mention of this rumor, Mr. Beck has quite a task ahead of him. Shutting down one web site is like trying to eradicate Pueraria lobata the dreaded Kudzu vine that is eating the South." The Citizen Media Law Project agreed with Levy and McSherry that Beck's trademark claim over the website was "preposterous", and noted: "Beck is only making matters worse for himself by threatening legal action against the website. Before, it was just another idiot meme among the oceans of idiot memes online. Now, it's creeping through the blogosphere toward the mainstream news. ... And Beck will be wishing he never called his lawyers in. Believe it."
Upon conclusion of the WIPO case, Glynnis MacNicol of Mediaite commented, "So, perhaps one lesson here is: live by the Constitution, put up with Internet by the Constitution." Ed Brayton of ScienceBlogs pointed out, "Ironically, Beck never did respond to Marc Randazza's motion for a stipulation that the panel would have to apply American law in deciding the case, but it didn't matter. He never really had a case even under the standards applicable by this international tribunal." Of Eiland-Hall's decision to turn the domain over to Beck after the conclusion of the case, Brayton commented, "Well played, sir. Well played," Monica Hesse of The Washington Post
commented on Eiland-Hall's decision to keep the website active at the alternate domain name DidGlennBeckRapeAndMurderAYoungGirlIn1990.com, "In a way, they're continuing to do what they accuse Beck of doing -- raise preposterous scenarios out of thin air, with the idea that even raising the question introduces the issue." Wendy Davis of Online Media Daily commented on the potential impact the case could have in the future, "The decision appears to mark a significant win for digital rights advocates because a ruling in Beck's favor could have encouraged other subjects of online parodies to take their complaints directly to the WIPO rather than U.S. courts, which are bound by the First Amendment. Some U.S. courts have ruled in other cases that parody sites don't infringe in trademark, even if they use a famous name in the URL." and John Cook of Gawker called it the "best part of the whole affair". Citizen Media Law Project assistant director Sam Bayard said of the WIPO arbitrator's decision, "It's good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution." He went on to congratulate Randazza, "Congratulations to Marc for this big victory and for his innovative brief that not only won the case, but also brought 'spock ate my balls' into the legal lexicon."
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(WIPO) in 2009 by political commentator Glenn Beck
Glenn Beck
Glenn Edward Lee Beck is an American conservative radio host, vlogger, author, entrepreneur, political commentator and former television host. He hosts the Glenn Beck Program, a nationally syndicated talk-radio show that airs throughout the United States on Premiere Radio Networks...
, concerning the satirical
Satire
Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement...
website "GlennBeckRapedAndMurderedAYoungGirlIn1990.com". The site was created by Isaac Eiland-Hall as a parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
of Beck's style of commentary. The site name came from Internet discussions which were based on a joke originally used by comedian Gilbert Gottfried
Gilbert Gottfried
Gilbert Gottfried is an American actor, voice actor and stand-up comedian, best known for his trademark comedic persona of speaking in a loud, grating tone of voice. He has played numerous roles in film and television, perhaps most notably voicing the parrot Iago in Disney's Aladdin , and...
at a 2008 comedy roast
Roast (comedy)
A roast is an event in which an individual is subjected to a public presentation of comedic insults, praise, outlandish true and untrue stories, and heartwarming tributes, the implication being that the roastee is able to take the jokes in good humor and not as serious criticism or insult, and...
of Bob Saget
Bob Saget
Robert Lane "Bob" Saget is an American stand-up comedian, actor, and television host. Although he is best known for his roles as Danny Tanner in Full House, host of America's Funniest Home Videos and Future Ted Mosby on How I Met Your Mother, Saget is also known outside of television for his blue...
, where Gottfried jokingly implored listeners to disregard the (non-existent) rumor that his fellow comedian rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
d and murdered a girl in 1990. Internet posters contrasted the meme with Beck's style of arguing, by requesting Beck "prove that he didn't" commit the act in question. Eiland-Hall created a website about it, which launched on September 1, 2009, and had 120,000 page loads within its first 24 hours.
Attorneys representing Glenn Beck's media company Mercury Radio Arts requested the domain registrar of Eiland-Hall's website to delete the site. They filed a complaint to the WIPO under the Uniform Domain Name Dispute Resolution Policy (UDRP) asserting that the domain name of the website was itself defamatory and claimed trademark over the domain name for its use of "Glenn Beck". Marc Randazza
Marc Randazza
Marc J. Randazza is a First Amendment attorney and the editor of the law blog The Legal Satyricon.-Early life and education:Marc John Randazza was born in Gloucester, Massachusetts on November 26, 1969 and graduated from Gloucester High School in 1987. Randazza attended the University of...
represented Eiland-Hall and filed a response brief to WIPO comparing the case to the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case Hustler Magazine v. Falwell
Hustler Magazine v. Falwell
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 , the United States Supreme Court held, in a unanimous 8–0 decision , that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.Thus,...
, and asserted that the website's domain name was "protected political speech", and "satirical political humor". The brief explained the connection between the website and their view on Beck's style of interviewing, where he asks his guests to prove a negative. Randazza asserted that Beck's action of going to the WIPO in an attempt to get the website taken down was in contradiction to his prior statements saying he prefers United States law over international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
Randazza sent a letter to Beck's attorneys, requesting that Beck stipulate to the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
during the WIPO case. Beck filed a supplemental filing in the case, and argued that the domain name was misleading and could lead individuals to believe it contained factual information rather than criticism. Eiland-Hall filed a surreply which said that Beck "attempted to silence a critic by circumventing (and thereby devaluing) the First Amendment". On October 29, 2009, the WIPO ruled against Beck, concluding that Eiland-Hall was making a political statement through use of parody in a "legitimate non-commercial use" of the Glenn Beck mark. Eiland-Hall wrote a letter to Beck in which he voluntarily turned over ownership of the domain name. He kept the website active at GB1990.com and didglennbeckrapeandmurderayounggirlin1990.com.
Commentators analyzed Beck's actions with respect to the "Streisand effect
Streisand effect
The Streisand effect is a primarily online phenomenon in which an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely...
", and noted that Beck's actions with regard to the website have served to increase attention to the site itself. Representatives of Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
, the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, and the Citizen Media Law Project agreed that Beck's trademark claim in his complaint over the website was "preposterous". A journalist for The First Post
The First Post
The First Post is a British daily online news magazine based in London. It was launched in August 2005. It publishes news, current affairs, lifestyle, opinion, arts and sports pages, and it features an online games arcade and a cinema featuring short films, virals, trailers and eyewitness news...
observed that Beck's claim that a website's domain name was itself defamatory "looks like a first in cyber law". After the WIPO ruling, Online Media Daily noted that a ruling in Beck's favor may have encouraged other U.S. subjects of satirical websites to circumvent the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
by taking claims to WIPO rather than airing them in U.S. courts. The assistant director of the Citizen Media Law Project commented on the conclusion of the case, "It's good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution."
Background
On August 31, 2009, a post on the InternetInternet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
discussion community Fark
Fark
Fark is a community website created by Drew Curtis that allows members to comment on a daily batch of news articles and other items from various websites. As of June 2009, the site boasts approximately four million unique visitors per month, which puts it among the top 100 English language websites...
applied a joke originally used by comedian Gilbert Gottfried
Gilbert Gottfried
Gilbert Gottfried is an American actor, voice actor and stand-up comedian, best known for his trademark comedic persona of speaking in a loud, grating tone of voice. He has played numerous roles in film and television, perhaps most notably voicing the parrot Iago in Disney's Aladdin , and...
at a 2008 comedy roast
Roast (comedy)
A roast is an event in which an individual is subjected to a public presentation of comedic insults, praise, outlandish true and untrue stories, and heartwarming tributes, the implication being that the roastee is able to take the jokes in good humor and not as serious criticism or insult, and...
of Bob Saget
Bob Saget
Robert Lane "Bob" Saget is an American stand-up comedian, actor, and television host. Although he is best known for his roles as Danny Tanner in Full House, host of America's Funniest Home Videos and Future Ted Mosby on How I Met Your Mother, Saget is also known outside of television for his blue...
, to instead refer to Beck. At the roast of Saget, Gottfried had jokingly implored listeners to disregard the (non-existent) rumor that his fellow comedian "raped and killed a girl in 1990". Gottfried repeatedly warned the audience at the roast not to spread the rumor; which did not exist prior to the comedian's pronouncements. Mediaite
Mediaite
Mediaite is a news and opinion blog covering politics and entertainment in the media industry as well as other issues. It is the flagship blog of Abrams Media, a ring of blogs run by ABC legal analyst Dan Abrams and also featuring Gossip Cop, Geekosystem, Styleite, Sports Grid, The Mary Sue and...
reported that the Internet group "Anonymous
Anonymous (group)
Anonymous is an international hacking group, spread through the Internet, initiating active civil disobedience, while attempting to maintain anonymity. Originating in 2003 on the imageboard 4chan, the term refers to the concept of many online community users simultaneously existing as an anarchic,...
" was associated with the spread of the meme
Internet meme
The term Internet meme is used to describe a concept that spreads via the Internet. The term is a reference to the concept of memes, although the latter concept refers to a much broader category of cultural information.-Description:...
. The internet posters contrasted the meme with Beck's style of arguing, by requesting Beck "prove that he didn't" commit the act in question. The meme spread to social media websites including Encyclopedia Dramatica
Encyclopedia Dramatica
Encyclopædia Dramatica was a satirical open wiki that used MediaWiki software. Launched on December 10, 2004, it lampooned both encyclopedic topics and current events, especially those related or relevant to contemporary internet culture. It was frequently utilized by a socially fluid and dynamic...
Reddit
reddit is a social news website where the registered users submit content, in the form of either a link or a text "self" post. Other users then vote the submission "up" or "down," which is used to rank the post and determine its position on the site's pages and front page.Reddit was originally...
, Yahoo!
Yahoo!
Yahoo! Inc. is an American multinational internet corporation headquartered in Sunnyvale, California, United States. The company is perhaps best known for its web portal, search engine , Yahoo! Directory, Yahoo! Mail, Yahoo! News, Yahoo! Groups, Yahoo! Answers, advertising, online mapping ,...
, Answers.com
Answers.com
Answers.com is an Internet-based knowledge exchange, which includes WikiAnswers, ReferenceAnswers, VideoAnswers, and five international language Q&A communities. The Answers.com domain name was purchased by Bill Gross and Henrik Jones at idealab in 1996. The domain name was acquired by NetShepard...
, YouTube
YouTube
YouTube is a video-sharing website, created by three former PayPal employees in February 2005, on which users can upload, view and share videos....
Twitter
Twitter is an online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters, informally known as "tweets".Twitter was created in March 2006 by Jack Dorsey and launched that July...
, and Digg.com. A variation of the Googlebomb technique was used, to have Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
give "Glenn Beck murder" as a search suggestion when searching for "Glenn Beck"; Google later censored this suggestion.
Isaac Eiland-Hall, a 34-year-old computer science
Computer science
Computer science or computing science is the study of the theoretical foundations of information and computation and of practical techniques for their implementation and application in computer systems...
student in Panama City
Panama City, Florida
-Personal income:The median income for a household in the city was $31,572, and the median income for a family was $40,890. Males had a median income of $30,401 versus $21,431 for females. The per capita income for the city was $17,830...
, Florida, saw the discussion on Fark using the Gottfried joke applied to Beck and created a website about it as a parody of Glenn Beck's style of political commentary. Eiland-Hall used the domain name registrar eNom
ENom
eNom, Inc. is a domain name registrar and Web hosting company that also sells other products closely tied to domain names, such as SSL certificates, e-mail services, and Website building software...
for his site. The site was launched on September 1, 2009, and received over 120,000 page loads within its first 24 hours. The website asserted it did not believe the charges to be true. Eiland-Hall wrote on the website, "We are definitely accusing Glenn Beck of using questionable tactics in order to spread his message and garner higher ratings. You see, we believe Beck uses tactics like the top part of this site ... and he uses them with no disclaimers, with all apparent seriousness."
Originally, the website displayed a small text disclaimer at the bottom stating that the site was satirical. Eiland-Hall later placed two disclaimers at the top of the site which prominently described it as a form of parody. The disclaimer at the top of the website's main page stated: "Notice: This website is 100% parody", and it included a link from the top to a larger disclaimer at the bottom of the page. The website stated, "But we think Glenn Beck definitely uses tactics like this to spread lies and misinformation". This statement was a criticism of Beck for sometimes challenging those he opposes to prove a negative. The disclaimer emphasized this last point, stating: "Read the last sentence again. That's the point. Read it a third time..." Eiland-Hall told Politics Daily
Politics Daily
Politics Daily was an American political journalism web site launched by AOL News in April 2009. It described itself as a "political news magazine for the general reader."Melinda Henneberger, a former Newsweek and New York Times reporter,...
: "Based on the energy of that first Fark thread where it all began – where it started before I got involved – it seems to be a cathartic release of frustration for many, including myself. So I suppose that makes it worth it, if nothing else." In an interview with Ars Technica
Ars Technica
Ars Technica is a technology news and information website created by Ken Fisher and Jon Stokes in 1998. It publishes news, reviews and guides on issues such as computer hardware and software, science, technology policy, and video games. Ars Technica is known for its features, long articles that go...
, Eiland-Hall stated "just felt right" to create the website. He said it was "using Beck's tactics against him", and a manner of "directing all this frustration" around Beck's form of commentary into actions. Eiland-Hall's website inspired copycat parodies.
Beck initiates legal action
By September 3, 2009, attorneys representing Mercury Radio Arts, Glenn Beck's media company, had requested the domain registrar of Eiland-Hall's website to delete the site. Beck's lawyers called the site's location a "highly defamatory domain name". They demanded that the domain registrar revoke the WhoisGuard privacy protection service of the website, and turn over the contact information of the then-anonymous Eiland-Hall. The registrar, NameCheap, refused. On September 4, 2009, Beck's lawyers sent another letter to the domain registrar, repeating their requests, and noting that they had read the website's contents: "We also note that it appears you contacted the individual, as he states on his website hosted on the Defamatory Domain that 'my webhost is taking some flak over this website, so if he gets shuts me down, it may take a bit to get rehosted.'"The second letter to NameCheap stated: "Despite our letter yesterday demanding that you delete the Defamatory Domain, suspend and/or terminate your provision of WhoisGuard privacy protection services to the unknown individual who sought to register the domain, and provide us with information identifying the unknown individual, we note that as of Friday, September 4, 2009 at approximately 6:35 EDT, the Defamatory Domain remains active." The domain registrar changed the nameservers of the website without telling Eiland-Hall. After Eiland-Hall contacted the registrar, he was permitted to move the nameservers back. Eiland-Hall subsequently registered alternate domains, including "DidGlennBeckRapeAndMurderAYoungGirlIn1990.com", and "gb1990.com".
In an interview with Gawker on September 9, 2009, Eiland-Hall stated that Beck's attorneys "have gone after the domain registrar, the hosting service, and even the data center that houses the servers on which his site lives". "They basically tried to contact every level to shut it down. My hosting service isn't happy with the situation, but they're standing by me until they get a court order," said Eiland-Hall. He told Gawker that he wanted his identity to remain anonymous. Gawker reported that they attempted to obtain a statement from Beck: "We contacted Beck's personal publicist, who declined to comment but confirmed that Beck believes the site to be defamatory and is trying to get it taken down."
WIPO complaint
In September 2009, lawyers representing Beck and his media company Mercury Radio Arts filed a complaint to the World Intellectual Property OrganizationWorld Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(WIPO) under the Uniform Domain-Name Dispute-Resolution Policy
Uniform Domain-Name Dispute-Resolution Policy
The Uniform Domain-Name Dispute-Resolution Policy is a process established by the Internet Corporation for Assigned Names and Numbers for the resolution of disputes regarding the registration of internet domain names...
(UDRP), against the privacy service for Eiland-Hall's website. WIPO is a Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
-based agency of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
. The rules of WIPO's Arbitration and Mediation Center were created by the Internet Corporation for Assigned Names and Numbers (ICANN). The privacy service for the website revealed the identity of the site's owner in response to Beck's complaint.
Beck's complaint asserted that Eiland-Hall "is attempting to mislead the public regarding the nature, origin and affiliation of the Web site". Beck argued that the domain name of the website could be confused with his trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
, "Glenn Beck". The complaint described the website's domain name as "defamatory" and asserted it "infringes on Beck's trademark interest in his own name". Beck did not claim libel or defamation as point in the complaint itself, which instead focused on the legal issue of trademark. The complaint asserted that the website was "plainly libelous, patently false, not authorized by Mercury or Beck, and is likely to cause confusion for consumers".
Beck's complaint asserted that the very nature of the domain name of the website itself was an example of a bad faith registration. The complaint argued that Eiland-Hall could have no legitimate interests or rights to the website's domain name. As of September 2009, Beck was still in the process of trademarking use of his name for "goods and services", including usage of the name "Glenn Beck" on merchandise. Eiland-Hall told The Daily Beast
The Daily Beast
The Daily Beast is an American news reporting and opinion website founded and published by Tina Brown, former editor of Vanity Fair and The New Yorker as well as the short-lived Talk Magazine. The Daily Beast was launched on October 6, 2008, and is owned by IAC...
, "I was a little surprised that Beck, of all people — after making such a big deal about how international bodies should never be able to trump the U.S. Constitution — would take this to an international organization. But as I felt confident I would win, I wasn't too worried about it."
Eiland-Hall response
Eiland-Hall retained First Amendment rightsFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
lawyer Marc Randazza
Marc Randazza
Marc J. Randazza is a First Amendment attorney and the editor of the law blog The Legal Satyricon.-Early life and education:Marc John Randazza was born in Gloucester, Massachusetts on November 26, 1969 and graduated from Gloucester High School in 1987. Randazza attended the University of...
to represent him. According to Randazza, Eiland-Hall sought out legal representation after receiving "threatening letters" from lawyers representing Beck. On September 28, 2009, Randazza filed a 17-page response brief on behalf of his client. The response brief asserted the website's domain name is "protected political speech", and "satirical political humor". According to Randazza, the website was being used for satire purposes, and the website's owner was not attempting to make a profit from such satire.
Randazza wrote: "Only an abject imbecile could believe that the domain name would have any connection to [Beck]". Randazza wrote that the website's domain name could not be confused with the "Glenn Beck" trademark, except to "A moron in a hurry
A moron in a hurry
"A moron in a hurry" is a hypothetical person against whom a claimant's concern might be judged in an English law civil action for passing off or trademark infringement. The expression is used to reject a claim that two items could reasonably be confused by a passer-by "A moron in a hurry" is a...
". This phrase refers to a legal concept where a reasonable person could become confused or deceived.
He wrote: "We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent's website wondering 'where did all the race baiting content go?'" Randazza further explained the "moron in a hurry" argument, with respect to this case: "It is specious at best for Mr. Beck to assert that his fans, or the public as a whole, would confuse Respondent’s website with Mr. Beck himself — unless of course it is Mr. Beck’s view that his fans and the average internet user are in fact hurried morons."
Randazza asserted that Beck had not sufficiently showed he has trademark rights over his name, "Glenn Beck". The response asserted that Beck was actually trying to have the website taken down because he did not appreciate the criticism. "We are here because Mr. Beck wants respondent's Web site shut down. He wants it shut down because Respondent's website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck's very rhetorical style," wrote Randazza in the response brief. Randazza argued that Eiland-Hall does have legitimate rights to his website's domain name because of its use as criticism of Beck and as part of the Internet meme that had started on the Fark website. "The Web site is a legitimate criticism site, consists of political satire
Political satire
Political satire is a significant part of satire that specializes in gaining entertainment from politics; it has also been used with subversive intent where political speech and dissent are forbidden by a regime, as a method of advancing political arguments where such arguments are expressly...
, and thus the Respondent has legitimate rights in the domain name. Mr. Beck's attempt to censor this criticism is improper and should be rejected," wrote Randazza in the brief.
The brief gave a brief history of Internet phenomena, including video parodies of the German film Downfall
Downfall (film)
Downfall is a 2004 German/Italian/Austrian epic war film directed by Oliver Hirschbiegel, depicting the final ten days of Adolf Hitler's life in his Berlin bunker and Nazi Germany in 1945....
, memes based on the film 300
300 (film)
300 is a 2007 American fantasy action film based on the 1998 comic series of the same name by Frank Miller. It is a fictionalized retelling of the Battle of Thermopylae. The film was directed by Zack Snyder, while Miller served as executive producer and consultant...
, "Hitler Hates Kanye West", "All your base are belong to us
All your base are belong to us
"All your base are belong to us" is a broken English phrase that became an Internet phenomenon or meme in 2000–2002...
", "Mr. Spock Ate My Balls", and the "Gerbil story" involving Richard Gere
Richard Gere
Richard Tiffany Gere is an American actor. He began acting in the 1970s, playing a supporting role in Looking for Mr. Goodbar, and a starring role in Days of Heaven. He came to prominence in 1980 for his role in the film American Gigolo, which established him as a leading man and a sex symbol...
. Randazza traced the website's origin, explaining the internet meme's roots in the Gilbert Gottfried joke: "The meme is a parody of from Glenn Beck’s own argumentation style mated with a Gilbert Gottfried routine performed during the Comedy Central Roast of “comedian” Bob Saget. During Gottfried’s speech, he kept repeating (in his trademark nasally voice) that there were rumors that Bob Saget had raped and killed a girl in 1990...". Randazza then spelled out the "humor equation" of Eiland-Hall's website: "The humor equation is simple: (Outrageous Accusation) + (Celebrity) + (Question Why the Celebrity Does Not Deny the Accusation) = (Confirmation of the Falsity of the Accusation + Laughter)".
The Eiland-Hall response brief cited a clip of Beck interviewing United States Congessman
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
Keith Ellison
Keith Ellison (politician)
Keith Maurice Ellison is the U.S. Representative for , serving since 2007. He is a member of the Democratic-Farmer-Labor Party. The district centers on Minneapolis. He was re-elected in 2010. Ellison is a co-chair of the Congressional Progressive Caucus.He is the first Muslim to be elected to the...
, a Muslim
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
from Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
. Beck requested that Representative
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
Ellison prove he was "not working with our enemies". "No offense and I know Muslims, I like Muslims, I've been to mosque
Mosque
A mosque is a place of worship for followers of Islam. The word is likely to have entered the English language through French , from Portuguese , from Spanish , and from Berber , ultimately originating in — . The Arabic word masjid literally means a place of prostration...
s, I really don't think Islam is a religion of evil. I think it's being hijacked, quite frankly. With that being said, you are a Democrat. You are saying let's cut and run. And I have to tell you, I have been nervous about this interview because what I feel like saying is, sir, prove to me that you are not working with our enemies. And I know you're not. I'm not accusing you of being an enemy. But that's the way I feel, and I think a lot of Americans will feel that way," Beck had said to Ellison. This was an example of Beck's style of interviewing, where he challenges his guests to prove a negative, to "prove you didn't do...". Randazza concluded "Quite simply, Beck’s shtick is simply a cheap imitation of Gilbert Gottfried, sans the humor."
Randazza's argument compared the case to the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case Hustler Magazine v. Falwell
Hustler Magazine v. Falwell
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 , the United States Supreme Court held, in a unanimous 8–0 decision , that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.Thus,...
. Randazza wrote: "Beck’s skin is too thin to take the criticism, so he wants the site down. Beck is represented by a learned and respected legal team. Accordingly, it is beyond doubt that his counsel advised him that under the First Amendment to the United States’ Constitution, no action in a U.S. Court would be successful. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Accordingly, Beck is attempting to use this transnational body to circumvent and subvert the Respondent’s constitutional rights." In the legal brief, Randazza pointed out that Beck's action of going to the WIPO in an attempt to get the website taken down was in contradiction to his prior statements saying he prefers United States law over international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. "[Beck’s] got good lawyers. I’m very impressed with his attorneys. He’s got to know if he tried to file it in U.S. courts he would have gotten creamed," said Randazza in a statement in Orlando Weekly
Orlando Weekly
The Orlando Weekly is an alternative newsweekly distributed in the Greater Orlando area of Florida. It features local news, views, arts, entertainment, local music coverage, an events calendar and classifieds...
.
On September 29, 2009, Randazza requested that Beck voluntarily ask that the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
be applied to the arbitration case, despite its international setting. Randazza made this request because Beck's political commentary favored the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
over international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. Randazza's September 29, 2009 letter to Beck's attorneys cited statements by Beck himself, where Beck indicated he preferred United States law over international law. These quotes by Beck included the statement: "Once we sign our rights over to international law, the Constitution is officially dead." Randazza's letter concluded: "I hate to presume anything about anyone, but I presume that Mr. Beck will agree to this stipulation. It would be an interesting day indeed if Mr. Beck preferred to risk that a panelist would apply French
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
law to a case between two Americans over a matter of public discourse... I am certain that neither party wishes to see First Amendment rights subordinated to international trademark principles, thus unwittingly proving Mr. Beck's point. Lest this case become an example of international law causing damage to the constitutional rights that both of our clients hold dear, I respectfully request that your client agree to stipulate to the application of American constitutional law to this case."
On October 8, 2009, Randazza was interviewed about the case on the WPRR radio program Declaring Independence. Randazza explained why Beck did not file a libel lawsuit in the United States: "...the average citizen only has to show a low level of wrongdoing in order to prevail in a libel action. But a public figure, somebody who has purposely seized the limelight and who has access to the media, has to show something called actual malice. And that means you have to show that it was knowingly false or that it was a reckless disregard for the truth. Now, that might even seem to fit here, however, the Supreme Court has ruled that when in the context it is not really a serious statement of fact, actual malice cannot be proven." He cited as an example the Hustler Magazine v. Falwell case that was popularized in the film The People vs. Larry Flynt
The People vs. Larry Flynt
The People vs. Larry Flynt is a 1996 American biographical drama film directed by Miloš Forman about the rise of pornographic magazine publisher and editor Larry Flynt, and his subsequent clash with the law. The film stars Woody Harrelson, Courtney Love, and Edward Norton.The film was written by...
.
Supplemental filing and surreply
Beck supplemental filingBeck submitted a supplemental filing in the case on October 13, 2009. In Beck's supplemental filing, his attorneys asserted that the joke of the Eiland-Hall website is not obvious, and therefore the website's domain name is misleading. "While there is absolutely nothing humorous or amusing about the statement made by Respondent in his domain name that 'Glenn Beck Raped and Murdered a Young Girl in 1990,' the average Internet user finding the domain name GlennBeckRapedAndMurderedAYoungGirlin1990.com ("Disputed Domain Name") in a search would have no reason not to believe that they will be directed to a website providing factual information (as opposed to protected criticism or similar protected speech) about Mr. Beck," wrote Beck's attorneys in the supplemental filing.
Eiland-Hall surreply
On October 20, 2009, Eiland-Hall filed a surreply in response to Beck's supplemental filing. Eiland-Hall's attorney Randazza wrote in the surreply, "An average Internet user might not 'get the joke'. In fact, the average Internet user does not understand any internet memes. That’s the fun of a meme — it is an esoteric inside joke that will leave most people scratching their heads." In Randazza's conclusion to the Eiland-Hall surreply, he noted, "Glenn Beck is the butt of a viral joke. He may not get the joke, but this does not make the joke likely to confuse or subject the domain name to transfer under the UDRP. Glenn Beck's failure to understand these basic principles of law does not make the joke any less humorous, and does not make him any less of the butt. The First Amendment protects Respondent’s right to make Glenn Beck the butt, and his hypocritical attempts to squelch legitimate free speech criticism do nothing to portray himself in a more flattering light. Because his arguments do not satisfy Section 4(a) of the Policy, his request should be denied. Because he has attempted to silence a critic by circumventing (and thereby devaluing) the First Amendment — which he publically (and in this proceeding) claims to love — he should be deeply ashamed."
WIPO ruling
On October 29, 2009, the WIPO ruled against Glenn Beck in the case. For Beck to have prevailed in the case, the WIPO court would have had to have ruled in Beck's favor on three issues: one, that the domain name could be confused with the mark "Glenn Beck", two, that Eiland-Hall did not have legitimate interests in the name, and three, that the domain name was "bad faithBad faith
Bad faith is double mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others, or self deception....
" usage. On the first point, Frederick M. Abbott, the WIPO arbitrator, ruled that the domain name could be confused with the "Glenn Beck" mark. On the issue of profit off Beck's mark, WIPO ruled, "While there is some evidence that at some stage third-party vendors of goods and services critical of [Beck] may have earned some income on sales of t-shirts and bumper stickers embodying political slogans based on click-throughs from [Eiland-Hall's] Web site, the panel does not believe this is sufficient 'commercial activity' to change the balance of interests already addressed." Abbott was the sole arbitrator on the WIPO panel.
Abbott concluded that Eiland-Hall had legitimate interests in the website's name, writing, "Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant’s mark under the Policy." Abbott did not make a conclusion on the third point, but stated it would not be likely that Beck would have won on the "bad faith" matter. Abbott wrote that the issue of determining whether the website is defamatory would not be an element for WIPO. The WIPO instead limited the scope of the case to a determination of whether the website registrant had engaged in "abusive domain name registration and use".
On November 6, 2009, Eiland-Hall wrote a letter to Beck, and gave him control of the domain free of charge. In the letter, he told Beck the administrative username and password for control of the domain. Eiland-Hall wrote that he had made his point, and that the act of filing the complaint exacerbated the situation for the complainant. "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. Then, in pressing forward (by not withdrawing the complaint and instead filing additional briefs), you turned the super-meme into an object lesson in First Amendment principles," wrote Eiland-Hall in the letter to Beck. He commented on Beck's actions with regard to free speech, Eiland-Hall explained his rationale for giving away the domain name, citing it was a matter of the First Amendment to the U.S. Constitution, "I want to demonstrate to you that I had my lawyer fight this battle only to help preserve the First Amendment. Now that it is safe, at least from you (for the time being), I have no more use for the actual scrap of digital real estate you sought."
Techdirt
Techdirt
Techdirt is a weblog that reports on technology trends, and related business and economic policy issues, often focusing on copyright and patent reform. The website was started in 1997 by Mike Masnick and it was originally based on the weblog Slash. Techdirt has been named among the favorite blogs...
reported on November 6, 2009 that GlennBeckRapedAndMurderedAYoungGirlIn1990.com had become a dead site. By November 10, 2009, the domain name GlennBeckRapedAndMurderedAYoungGirlIn1990.com was registered by Beck's company Mercury Radio Arts, Inc. Eiland-Hall's website was still operational at GB1990.com and didglennbeckrapeandmurderayounggirlin1990.com. He posted a notice at GB1990.com saying, "WE WON!", and wished Beck would feel better as he was then suffering from appendicitis
Appendicitis
Appendicitis is a condition characterized by inflammation of the appendix. It is classified as a medical emergency and many cases require removal of the inflamed appendix, either by laparotomy or laparoscopy. Untreated, mortality is high, mainly because of the risk of rupture leading to...
. In a posting to his blog, Eiland-Hall's lawyer Marc Randazza commented, "Free Speech Wins Again."
Beck did not issue a response to Eiland-Hall's letter. A representative of Beck declined to provide a comment to PC Magazine
PC Magazine
PC Magazine is a computer magazine published by Ziff Davis Publishing Holdings Inc. A print edition was published from 1982 to January 2009...
about the conclusion of the case. Lawyers for Beck did not respond to a request for comment about the WIPO ruling from National Public Radio.
Commentary
Electronic Frontier FoundationElectronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
attorney Corynne McSherry and Paul Levy of the organization Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
commented on the case to Ars Technica
Ars Technica
Ars Technica is a technology news and information website created by Ken Fisher and Jon Stokes in 1998. It publishes news, reviews and guides on issues such as computer hardware and software, science, technology policy, and video games. Ars Technica is known for its features, long articles that go...
, and both stated Beck's trademark claim before the WIPO was "preposterous". Levy noted that domain names in and of themselves could be seen as defamatory, but the statement in the domain name would have to be deemed both false, and a statement of malice. Levy and McSherry thought that Beck's attorneys' filing may have been to ascertain Eiland-Hall's identity, which was anonymous
Anonymity
Anonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning "without a name" or "namelessness". In colloquial use, anonymity typically refers to the state of an individual's personal identity, or personally identifiable information, being publicly unknown.There are many reasons why a...
prior to Beck's complaint. McSherry said that "I'm not sure of any case where someone has claimed that a domain name was defamatory," and Jack Bremer of The First Post
The First Post
The First Post is a British daily online news magazine based in London. It was launched in August 2005. It publishes news, current affairs, lifestyle, opinion, arts and sports pages, and it features an online games arcade and a cinema featuring short films, virals, trailers and eyewitness news...
wrote that the attempts by Beck's lawyers to claim that the domain name of the website is itself defamatory "looks like a first in cyber law".
Media commentators wrote that Randazza's legal brief was entertainingly written, including Paul Schmelzer of the Minnesota Independent
Minnesota Independent
The Minnesota Independent, formerly Minnesota Monitor, and sometimes known as MnIndy, is an independent online newsmagazine. It launched in August 2006, with a focus on coverage of political issues...
, Andy Carvin of National Public Radio, and Andrew Allemann of Domain Name Wire. Writing for Bostonist, Rick Sawyer called Randazza's legal brief "Hilarious!", and classed him among the "most hilarious legal writers" in North Shore
North Shore (Massachusetts)
The North Shore is a region in the U.S. state of Massachusetts, loosely defined as the coastal area between Boston and New Hampshire. The region is made up both of a rocky coastline, dotted with marshes and wetlands, as well as several beaches and natural harbors. The North Shore is an important...
, Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
. Eriq Gardner of Adweek
Adweek
Adweek is a weekly American advertising trade publication that was first published in 1978....
pointed out that "this case also makes a political point", referring to Beck's style of commentary exemplified in the interview with Congressman Keith Ellison. Chris Matyszczyk of CNET News commented on the legal issues of the case, and wrote "For those of you with a purely legal bent, the papers offer some interesting trademark and First Amendment issues too. The latter revolve around the idea that given this dispute is between two Americans, it should be handled with respect to the First Amendment. As for the former, is Glenn Beck's trademark merely Glenn Beck? Or is it anything that includes the words Glenn and Beck?" Ed Brayton of ScienceBlogs
ScienceBlogs
ScienceBlogs is an invitation-only blog network and virtual community. It was created by Seed Media Group in 2006 to enhance the public understanding of science. , ScienceBlogs hosted 75 blogs dedicated to various fields of research. Each blog has its own theme, specialty, and author and is not...
called Randazza's request that Beck agree to stipulate to United States law "pure genius", and Daily Kos
Daily Kos
Daily Kos is an American political blog that publishes news and opinions from a progressive point of view. It functions as a discussion forum and group blog for a variety of netroots activists, whose efforts are primarily directed toward influencing and strengthening the Democratic Party...
noted, "You have to understand the beautifully tight position that this puts Beck in: if he presses on further with a supranational attempt on trying to get rid of the website, he will continue to look like a gigantic hypocrite, given Beck's reported disdain for international bodies and fetishization (without understanding) of American law."
Commentators analyzed Beck's actions with respect to the "Streisand effect
Streisand effect
The Streisand effect is a primarily online phenomenon in which an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely...
". The "Streisand effect" refers to a phenomenon by which an attempt to remove critical material from the Internet backfires, instead increasing interest in that material. Jim Emerson of the Chicago Sun-Times
Chicago Sun-Times
The Chicago Sun-Times is an American daily newspaper published in Chicago, Illinois. It is the flagship paper of the Sun-Times Media Group.-History:The Chicago Sun-Times is the oldest continuously published daily newspaper in the city...
commented that the website's disclaimer "hasn't stopped Beck's lawyers from trying to shut down the site – resulting in more blowback and another manifestation of the dreaded Streisand Effect!" Jeffrey Weiss of Politics Daily
Politics Daily
Politics Daily was an American political journalism web site launched by AOL News in April 2009. It described itself as a "political news magazine for the general reader."Melinda Henneberger, a former Newsweek and New York Times reporter,...
wrote that by taking legal action, Beck "did the one thing guaranteed to garner the greatest amount of publicity for the site". John Cook of Gawker noted that "Glenn Beck's trying to shut down their web site, ensuring that people will write about it." Mike Masnick
Mike Masnick
Michael "Mike" Masnick is the CEO and founder of Techdirt, a weblog that focuses on technology news and tech-related issues...
wrote about the case on Techdirt
Techdirt
Techdirt is a weblog that reports on technology trends, and related business and economic policy issues, often focusing on copyright and patent reform. The website was started in 1997 by Mike Masnick and it was originally based on the weblog Slash. Techdirt has been named among the favorite blogs...
, and commented about the effect of Beck's actions on the spread of the meme: "Beck would have been better off just ignoring it. Instead, in legitimizing it by trying to take it down, many more people become aware of the meme – and may start calling attention to situations where Beck (and others) make use of such tactics." Steffen Schmidt wrote of Beck's predicament in an article in the Des Moines Register
Des Moines Register
The Des Moines Register is the daily morning newspaper of Des Moines, Iowa, in the United States. A separate edition of the Register is sold throughout much of Iowa.-History:...
: "Although the mainstream media has avoided any mention of this rumor, Mr. Beck has quite a task ahead of him. Shutting down one web site is like trying to eradicate Pueraria lobata the dreaded Kudzu vine that is eating the South." The Citizen Media Law Project agreed with Levy and McSherry that Beck's trademark claim over the website was "preposterous", and noted: "Beck is only making matters worse for himself by threatening legal action against the website. Before, it was just another idiot meme among the oceans of idiot memes online. Now, it's creeping through the blogosphere toward the mainstream news. ... And Beck will be wishing he never called his lawyers in. Believe it."
Upon conclusion of the WIPO case, Glynnis MacNicol of Mediaite commented, "So, perhaps one lesson here is: live by the Constitution, put up with Internet by the Constitution." Ed Brayton of ScienceBlogs pointed out, "Ironically, Beck never did respond to Marc Randazza's motion for a stipulation that the panel would have to apply American law in deciding the case, but it didn't matter. He never really had a case even under the standards applicable by this international tribunal." Of Eiland-Hall's decision to turn the domain over to Beck after the conclusion of the case, Brayton commented, "Well played, sir. Well played," Monica Hesse of The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
commented on Eiland-Hall's decision to keep the website active at the alternate domain name DidGlennBeckRapeAndMurderAYoungGirlIn1990.com, "In a way, they're continuing to do what they accuse Beck of doing -- raise preposterous scenarios out of thin air, with the idea that even raising the question introduces the issue." Wendy Davis of Online Media Daily commented on the potential impact the case could have in the future, "The decision appears to mark a significant win for digital rights advocates because a ruling in Beck's favor could have encouraged other subjects of online parodies to take their complaints directly to the WIPO rather than U.S. courts, which are bound by the First Amendment. Some U.S. courts have ruled in other cases that parody sites don't infringe in trademark, even if they use a famous name in the URL." and John Cook of Gawker called it the "best part of the whole affair". Citizen Media Law Project assistant director Sam Bayard said of the WIPO arbitrator's decision, "It's good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution." He went on to congratulate Randazza, "Congratulations to Marc for this big victory and for his innovative brief that not only won the case, but also brought 'spock ate my balls' into the legal lexicon."
See also
- Glenn Beck ProgramGlenn Beck ProgramThe Glenn Beck Program is an American talk radio show hosted by commentator Glenn Beck on Premiere Radio Networks. Since its inception as a nationally syndicated show in 2002, the program has become one of the highest rated radio programs...
- Glenn Beck (TV program)Glenn Beck (TV program)Glenn Beck is a United States cable news show hosted by Glenn Beck that aired weekdays on Fox News Channel. The program, originally on CNN Headline News , premiered on FNC on January 19, 2009 and aired weekdays at 5:00 PM EST...
- List of Internet phenomena
- List of satirists and satires
- News satireNews satirethumb|right|220px|[[The Daily Show with Jon Stewart]] is a news satire program.News satire, also called fake news , is a type of parody presented in a format typical of mainstream journalism, and called a satire because of its content...
- Political satirePolitical satirePolitical satire is a significant part of satire that specializes in gaining entertainment from politics; it has also been used with subversive intent where political speech and dissent are forbidden by a regime, as a method of advancing political arguments where such arguments are expressly...
External links
- Citmedialaw.org, Beck v. Eiland-Hall case page at Citizen Media Law Project, organization affiliated with Harvard Law SchoolHarvard Law SchoolHarvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
- WIPO.int, WIPO Domain Name Decision: D2009-1182
- Wordpress.com, The Legal Satyricon blogpost about this WIPO arbitration case (Randazza's blog)
- Glennbeckrapedandmurderedayounggirlin1990.com, The site in question in the case (dead as of November 6, 2009)
- Didglennbeckrapeandmurderayounggirlin1990.com, Website of the respondent (dead as of October 3, 2011)