Tuesday, November 10, 2009

Wikinews interviewed the creator of a parody website satirizing American political commentator Glenn Beck, about his thoughts after prevailing in a domain name dispute brought by Beck before the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. Florida resident Isaac Eiland-Hall created the website in September, and it asserts Beck uses questionable tactics "to spread lies and misinformation". Eiland-Hall was represented in the case by free speech lawyer Marc Randazza.

Wikinews interviewed Randazza for the article "US free speech lawyer Marc Randazza discusses Glenn Beck parody", and previously reported on the Beck v. Eiland-Hall case in articles, "US free speech lawyer defends satire of Glenn Beck", "Satirical website criticizes Glenn Beck for 'hypocritical' attempts to silence free speech", and "Glenn Beck loses domain name case over parody website".

Background

Eiland-Hall registered the website at the domain "www.GlennBeckRapedAndMurderedAYoungGirlIn1990.com". Its premise was derived from a joke statement made by Gilbert Gottfried about fellow comedian Bob Saget. Users of the Internet discussion community Fark first applied the joke to Beck, and it then became popular on several social media sites. Eiland-Hall saw the discussion on Fark, and created a website about it. The website asserts it does not believe the rumors to be true, commenting, "[b]ut we think Glenn Beck definitely uses tactics like this to spread lies and misinformation." The website was created on September 1, and just two days later attorneys for Beck's company Mercury Radio Arts took action. Beck's lawyers sent letters to the domain name registrar where they referred to the domain name itself as "defamatory", but failed to get the site removed.

Beck filed a formal complaint with the Switzerland-based agency of the United Nations, WIPO, who operate under regulations laid out by the Internet Corporation for Assigned Names and Numbers. Beck asserted the website's usage is libelous, bad faith, and could confuse potential consumers. Beck's complaint was filed under the process called the Uniform Domain Name Dispute Resolution Policy. This policy allows trademark owners to begin an administrative action by complaining that a certain domain registration is in "bad faith". Beck argued the site should be shut down because it is an infringement upon his trademark in his own name, "Glenn Beck".

Eiland-Hall retained Randazza as his attorney after receiving threatening letters from legal representatives of Beck. On September 28, Randazza filed a response brief to WIPO, contending the site is "protected political speech", due to it's "satirical political humor". Randazza stated, "even an imbecile would look at this Web site and know that it’s a parody." Randazza's brief commented on Beck's style of reporting, and highlighted a controversial statement made by him when interviewing a Muslim US Congressman. Beck said to Representative Keith Ellison, "I like Muslims, I've been to mosques. ... 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." According to the Citizen Media Law Project, the website's joke premise takes advantage of "a perceived similarity between Beck's rhetorical style and the Gottfried routine".

Randazza argued in the response filed on behalf of Eiland-Hall that Beck attempted to use the process of the WIPO court to infringe the free speech rights of his client; "Beck is attempting to use this transnational body to circumvent and subvert the Respondent's [web site owner] constitutional rights [to freedom of speech]," he wrote. Randazza cited the U.S. Supreme Court case, Hustler Magazine v. Falwell, in arguing that Beck's attorneys advised him against filing legal action in a U.S. court because the website would likely be seen as a form of parody and due to the First Amendment to the U.S. Constitution, such legal action would not be successful.

On September 29, Randazza sent a request to Beck's representatives, asking that their client agree to stipulate to the United States Constitution, and especially to the First Amendment, during the case before the WIPO. In the request, Randazza quoted a statement from Beck himself about the usage of international law by United States citizens, Beck said, "[o]nce we sign our rights over to international law, the Constitution is officially dead." In an October 19 interview with Wikinews, Randazza stated that Beck had not replied to his request to stipulate to the U.S. Constitution and the First Amendment in the WIPO case. On Monday, Ed Brayton of ScienceBlogs noted, "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..."

On October 20, Randazza filed a surreply – a response document to an October 13 supplementary filing made by Beck in the case. Attorneys for Beck asserted in the supplementary filing that the joke made by the website is difficult to comprehend, and therefore the domain name is confusing. In Beck's supplementary filing, his lawyers argued, "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."

Randazza's surreply asserted, "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 called Beck "the butt" of a joke he apparently does not understand. Randazza wrote that Beck "should be deeply ashamed" for devaluing the First Amendment to the U.S. Constitution.

...the ‘total effect’ is that of political commentary by respondent, capable of protection as political speech by the 1st Amendment under the Hustler Magazine standard. —WIPO ruling

Frederick M. Abbott, the WIPO arbitrator, ruled that Eiland-Hall had legitimate interest in the domain name of the website he created. "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," said the WIPO ruling. The WIPO arbitrator commented that the panel was "very reluctant to reject respondent’s claim of legitimate noncommercial and fair use," and noted, "Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject." The Hustler Magazine v. Falwell U.S. Supreme Court case was cited by the WIPO arbitrator in the ruling, "This panel considers that if Internet users view the disputed domain name in combination with a visit to respondent’s website, the ‘total effect’ is that of political commentary by respondent, capable of protection as political speech by the 1st Amendment under the Hustler Magazine standard."

After the WIPO ruling, Eiland-Hall decided to voluntarily relinquish ownership of the domain name and hand it over to Glenn Beck. On Friday, Eiland-Hall sent a letter to Beck, and pointed out that Beck's actions only served to further increase publicity to the meme described on the website. "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.

Eiland-Hall criticized Beck's actions with regard to the First Amendment to the U.S. Constitution, writing, "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. 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". He stated that he persevered in the case in order to uphold the value 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..." A representative of Beck declined to provide a comment about the WIPO ruling, after a request from PC Magazine.

Commentators likened the legal conflict between Beck and the site to the Streisand effect, a phenomenon where an individual's attempt to censor material on the Internet in turn proves to make the material itself more public. Online Media Daily commented, "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." Citizen Media Law Project's assistant director wrote that the ruling was appropriate, "It's good to see that this WIPO arbitrator had no interest in allowing Beck to circumvent the guarantees of the U.S. Constitution."

Eiland-Hall's website was still operational Monday, at a mirror site www.GB1990.com. At the site, Eiland-Hall announced "WE WON!". He gave Beck well-wishes as the commentator is recovering from appendicitis.

Interview

((Wikinews )) Can you describe a little bit about yourself and your background, and how you came to be interested in the Glenn Beck meme in the first place?

Isaac Eiland-Hall: I've been a computer geek since 1987, when I was 12. I've been on the internet since 1994. Among other jobs, I've done technical support and web design/hosting. I've gone back to school and I'm working on a degree in Computer Science. If I manage that, I'm thinking of following up with a Master's in Meteorology. If I had more courage, I'd probably try to become a professional storm chaser.

I grew up as a very fundamentalist Southern Baptist. I got better. My political and social outlook has gone from very conservative to very liberal. One nice thing about this is that I understand both sides. A lot of liberals scoff at the concept of Chick tracts, for example; and I do, now. But growing up, I remember believing in all that stuff. I do have to remind myself that most Christians are pretty moderate in their outlook, though, sometimes when I get a little frustrated by some of the more vocal small groups who would like the U.S. to become a Christian Theocracy.

I've also become frustrated with radicals -- liberal and conservative; though, as a liberal, you'll be shocked - shocked, I say - to find out that I see more conservatives that fit the bill -- radicals who I feel are tearing this country apart with their manipulations and lies. These extremists are pushing people toward the extremes, and it's polarizing and ripping our nation apart. It seems like nobody wants to compromise any longer; nobody wants to try and work together; everybody wants their party to win at all costs, because the other party is the spawn of Satan.

The sad thing is - the American people are losing in this battle. Republicans are fighting against government interference in business; Democrats are (or should be) fighting against business interference in government. Ultimately, though, special interests are pumping so much money into the political scene that it seems the voice of the People is lost in the noise of business.

It seems that the media - especially the television media - have long ago figured out that the way to make their businesses work (which, being commercial entities, they must, of course, do as well as they can) requires ratings. Ratings require getting people to watch. Getting people to watch requires controversy. And so, people like Glenn Beck - among many others - rise to become stars, because they can get ratings, which ultimately boil down to money. The problem is that truth and compromise are boring, but exaggeration and controversy are exciting.

When I saw the thread on Fark, where one of the posters, in a thread about Sarah Palin announcing her support for Glenn Beck, said, "Why haven't we had an official response to the rumor that Glenn Beck raped and murdered a girl in 1990?" -- I didn't think too much of the post by itself; but in the thread, it immediately took off. A bunch of people ran with it and it became a hit in that thread. It was actually the next day when I saw this thread - and so many people had said so many funny things... it was like a relief valve had opened up and all this pent up frustration was flowing out.

((WN )) Why did you decide to create the website "www.glennbeckrapedandmurderedayounggirlin1990.com"?

E-H: There was so much energy in the Fark thread where the meme got its start. I felt that it was something worth continuing; that the frustration that was being expressed in that thread through the expression of the meme might actually become a force for change. And even if it didn't manage to change anything, just the simple act of being a part of the meme might bring about a cathartic release of that frustration at all the stupidity of the pundits out there - of whom I think that Glenn Beck is really the worst of the worst.

The thing about Fark is - it's a great site, but it's all based on these threads. Someone submits a link, and that gives you a thread to talk about it. After something like 30 days, posting is cut off. Also, the site is made up of a lot of links for the public threads, but many times that for the private threads. It can be very hard to keep up with a single thread. So I realized that if this meme were to take off - it needed a home. I knew I needed to create a website, and a forum on that website, to facilitate whatever was going to happen.

Ultimately, the website's purpose was to shine a light on Glenn Beck's style, and to reflect it right back at him.

((WN )) How did you feel when you first found out that Glenn Beck had begun to take legal actions with regard to your website?

E-H: Well, it certainly didn't make me very happy, but at the same time, it confirmed what I suspected.

It didn't make me happy because, obviously, nobody likes to be sued. It also made me unhappy because I saw it as a direct assault on free speech.

Of course, it confirmed my suspicions that Glenn Beck's claims to be a champion of the constitution are false claims.

((WN )) Why did you register alternate domain names : "DidGlennBeckRapeAndMurderAYoungGirlIn1990.com", and "gb1990.com"? Will you maintain the website at those locations?

E-H: As I said about the original domain - I wanted to register the meme as the domain, and that's what I referred to as the "statement" domain. The "question" domain came about because the entire concept of the meme is not to try and convince people that Beck raped and murdered; but how the supposed rumour that he did is a direct parody of the techniques he himself uses.

I thought that the question form would serve the meme better, so I went ahead and registered it; and as soon as I did, I changed the website to the question instead of the statement (in the title and header for the page).

When the domain dispute was filed, I registered gb1990.com, as well as gb1990.net. I did this partly because if he managed to get the question or statement domains taken down, I would have a backup in place. Also, it's a lot easier to type "gb1990" than either of the long versions, so that was a part of it as well. I made gb1990.com the primary domain for the website, and parked the other two on top. I put gb1990.net as a mirror on my second server, in case something happened to the first.

((WN )) You wrote in your November 6 letter to Beck, "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." Media commentators have written that Beck's actions in the case trigged the "Streisand effect". Do you think this happened here? What do you mean when you say Beck created a "super meme"?

E-H: I definitely think the Streisand effect came into play. Even before I got the website up and running, Farkers had already spread the meme - asking questions on Yahoo Answers, for example. So it definitely got attention out there; but the traffic to the site dropped off drastically after the first couple of days. It wasn't until people posted news about the legal threats to Reddit, Fark, Digg, and many blogs that I saw spikes in traffic. The major spikes in traffic to the site have all come from updates about where the legal fight stood. For example, when a thread went green (public) on Fark.com, traffic to my servers nearly overwhelmed them for a couple of hours. When we posted my brilliant lawyer Marc Randazza's responses to the original WIPO complaint, traffic was high for a couple of days. In each case, it dropped down to a relatively low level when news was sparse.

I think that if Beck had never started the legal action, this meme would have died out after a couple of weeks. It might have popped up in the occasional place, but I don't think it would have lasted the more than two months it has.

By super meme, I just mean that there are so many memes out there. Some are specific to a certain site; some have a very short life and die quickly; some continue at a very low level. This meme, however, just took off. So many people were posting it on some many unrelated threads on Fark that moderators were banning people for it). I've seen people post this meme in places where few memes go - on news sites, blogs: anywhere people comment, this meme will pop up.

((WN )) You also wrote in your letter to Beck, "In this context of this WIPO case, you denigrated the letter of First Amendment law." How would you like Beck to act differently in the future with regard to the First Amendment to the United States Constitution?

E-H: Beck's WIPO complaint revolves around trademark issues. His claim is that the domains violate the trademark he has in his name. I don't believe that was his ultimate motivation in trying to get the domain; I think he was trying to stifle free speech. I think he looked at Hustler v. Falwell and decided he couldn't win against my legally-protected right to mock him, but that he might be able to use other means to get my point of view shut down. (It's easy to come to this conclusion if you look at the legal documents I posted on gb1990.net/legal - and I posted everything I got)

What I'd like Beck to do differently is simply realize that the chilling effects of trying to have speech you disagree with shutdown would ultimately affect his rights as well. I disagree with many of the things he says, and hope to put pressure on him to change his techniques; but ultimately, I would never wish to stifle his first amendment rights. There's a difference between disagreeing with someone, mocking them, and trying to intimidate them to stop talking.

As regards the application of the Hustler v. Falwell case to this case, I think the overall application was fair: Parody and satire are protected forms of free speech. —Eiland-Hall

((WN )) In the final decision in the Beck v. Eiland-Hall case, the WIPO arbitrator cited the U.S. Supreme Court case, Hustler Magazine v. Falwell. Are you familiar with this Supreme Court case? What are your thoughts on how it was applied to your case?

E-H: I am familiar with the case; and in fact, it helped me sleep at night during the past couple of months. I think it is a very important case on the topic of first amendment rights as regards parody and satire. I strongly believe that humour should be used to point out the ridiculous - that's one of the reasons that the Daily Show is so popular and successful. They do it very well.

As regards the application of the Hustler v. Falwell case to this case, I think the overall application was fair: Parody and satire are protected forms of free speech.

((WN )) On September 29, 2009, your lawyer Marc Randazza requested that Glenn Beck agree to stipulate to the application of the United States Constitution, and also especially to the First Amendment to the U.S. Constitution. In an October 19 interview with Wikinews, Randazza said that Beck had not responded to this request. Why do you think Beck chose not to stipulate to the U.S. Constitution and the First Amendment in this case?

E-H: I think Beck knew that doing so would hurt his case. The rights of free speech we enjoy in the United States are broader than in some other countries. WIPO, being an international organization, could well have assigned an arbitrator from a country that doesn't protect speech as strongly as we do. And WIPO, not being bound by the U.S. Constitution, might not choose to consider the strong protections we have in rendering their decision.

We also felt it was ironic that Glenn Beck, who is on record as being against an international body making judgments that might overrule the U.S. Constitution, would himself choose to use an international body to try and stifle speech that would be protected under the U.S. Constitution. So ultimately, you could say we were trying to help him retain the patriotic image he has worked to hard to present.

Ultimately, the arbitrator applied the First Amendment anyhow. We felt that in sending that letter, we would give Beck a chance to show that his purported support for the constitution was real. His failure to respond shows everyone that he is full of shit.

We also felt it was ironic that Glenn Beck, who is on record as being against an international body making judgments that might overrule the U.S. Constitution, would himself choose to use an international body to try and stifle speech that would be protected under the U.S. Constitution. —Eiland-Hall

((WN )) An article in Online Media Daily noted, the decision in your WIPO case, "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." How do you feel about the fact that your case may have set precedent for similar cases in the future?

E-H: If this has truly set precedent, I am honored to have the chance to serve the cause of Liberty. I'm nobody special, mind you. Anyone could have set up a site - it just happened to be me that got thrown in the center of this fight.

When Beck first filed his WIPO action, I was ready to just give in to make things easier for myself. Surrender is always the easiest thing, isn't it? But, I started to think about what the case meant. It did occur to me that if Beck succeeded, that his very predictions that he gives on the air -- about international bodies threatening our free speech rights -- would come true. I then realized that the case was about much bigger principles.

((WN )) Are you happy with your decision to turn over the "www.glennbeckrapedandmurderedayounggirlin1990.com" domain name to Beck?

E-H: Absolutely yes. For one, the meme is already out there. In one sense, the job of the meme is over and done with - it has gotten people to talk about the issue, and that was one of the primary goals. Another primary goal was to foster that sense of community, and to provide a release valve for the frustration so many have with Glenn Beck, and others like him. Of course, we want to keep the entire thing going, but we can do that without the statement version of the domain.

That domain gets a LOT of traffic. I could have taken down the domain, put up a pay per click site, and made a heck of a lot of money by harnessing the advertising revenue from the site. It was in my financial best interest to do that - but this was always about free speech - not about profit.

I absolutely think giving him the domain sends the message that I want to send - this wasn't personal, it was political. Beck made it about Free Speech principles, and I think I did my part to stand up for those principles. But, keeping this particular domain wouldn't have advanced that cause any further than it had already been advanced.

I wanted to give him the domain to demonstrate the fact that my interest in fighting the WIPO case was purely a matter of principle.

((WN )) Do you have any thoughts or advice for other potential creators of satirical parody websites who may undergo a similar legal process in the future?

E-H: If you decide to make a political satire site, do it. Be prepared to stick it out. Get a good lawyer who is committed to First Amendment principles, who knows how to handle this kind of thing, but get one who will teach you and make sure that you are able to make informed decisions.

There were a lot of lawyers to choose from, but Mr. Randazza seemed to be the best guy for this kind of case. His First Amendment credibility is unshakeable, his knowledge of this area of law is fantastic, but he has a reputation for managing his clients' interests really well. He didn't tell me what to do, he taught me what the law was, he gave me options and choices, and let me make informed decisions. In a process like this, it is easy to feel like things are out of your control. Make sure your lawyer teaches you about what you can control. It will make you feel a lot more comfortable.

((WN )) Are there any other points regarding the Beck v. Eiland-Hall case that you would like to elaborate or explain?

E-H: Although the vast majority of emails and voicemails I've received are from folks that clearly get the joke, there are so many people that didn't. If there's anyone out there who still thinks the point was to try and get people to believe that Glenn Beck raped and murdered a young girl in 1990: Please understand that I've tried to make it as clear as I could that it's just not true. The entire point is that the supposed rumour is so over-the-top as to be ridiculous. Further, I have always had a disclaimer on the site explaining that it was a parody. The welcome blurb has always said that we don't believe the rumour is true. The entire point is that we're trying to point out techniques we've seen Beck himself use.

One thing that has amused me is that some of the folks who don't get that have come into the forum, and tried to respond by attacking Obama, because that's what they feel the response to the supposed rumour should be. Sometimes I've been successful in explaining how this really isn't the same thing, but sometimes it just doesn't work.

The other thing I would like to clarify is that I have not made a single cent from this; in fact, I have spent probably more than I could afford to on the whole project. I also didn't want or expect the 15 minutes of fame I got. I don't have any regrets - it's been fun, in some respects, mind, but if I was out for fame or money, this would not be the method I'd choose.

((WN )) Mr. Eiland-Hall, thank you for taking the time to participate in this interview with Wikinews.

E-H: Hey... that's not a question!

Seriously, thank you very much for taking the time to interview me. It's been my pleasure.





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