FC: Public Citizen files brief, says WashPost should have ignored Purdy

[Declan McCullagh <declan () well com>]

[I invite the attorneys for the Washington Post, copied above, to reply. I 
will forward their response unedited. --Declan]

---

Date: Wed, 19 Feb 2003 12:18:37 -0500
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Cc: <wpurdy () attbi com>, <strahan () pclink com>, <Maya.Alexandri () wilmer com>,
   <PCarome () wilmer com>, <Thomas.Olson () wilmer com>
Subject: Purdy domain name case

Public Citizen has asked US Court of Appeals for the Eighth Circuit to
allow it to file a brief urging it to uphold the initial order issued by
the district court against William Purdy for posting anti-abortion
campaign material online using domain names that incorporate the
trademarks of the Washington Post, Coca-Cola and other companies.  After
thinking long and hard about this situation, and studying the record
carefully, we concluded that Purdy was not using the trademarks in any
fair or appropriate way to post his criticisms of the trademark owners,
but rather was unfairly using their trademarks to call attention to his
views about abortion.  We have argued to the court of appeals that the
injunction should not, however, be affirmed on the broad grounds argued
by the plaintiff companies, but rather on the ground that the specific
uses that Purdy had made of the trademarks through the time of the
injunction were sufficiently abusive to warrant equitable relief.
Therefore, we do not believe that Purdy can properly invoke the sorts of
arguments that we used to win a victory for Hank Mishkoff against
Taubman Company earlier this month.   A copy of the brief is available
on our website at http://www.citizen.org/documents/PurdyAmicusBrief.pdf

That being said, we have grave qualms about whether the plaintiffs in
this case are getting carried away by their outrage at Purdy in their
continued pursuit of some of the domain names that he has registered
more recently.  We see no likelihood whatsoever that any Internet user
is going to type such domain names as WashingtonPostChristian.com or
WashingtonPostJesus.com into their Internet browser and so be misled to
Purdy's anti-abortion websites.    To be sure, these names include the
Post's trademark and do not include critical words, and in that respect
may appear to violate some clauses of the preliminary injunction
(because the injunction applies only to names that are "confusingly
similar" however, the injunction may not actually be violated when read
carefully).  Purdy registered these and many other domain names for the
apparent purpose of testing how far he could go without getting slapped
down.  Once Purdy waved the red blanket in their faces, the Post's
lawyers went after Purdy for using these names, without ever thinking
about whether these names posed any realistic likelihood of diverting
Internet traffic through confusion over source.

In this regard, it is worth noting that last summer, as his controversy
with the Post and Coca-Coca was heating up, Purdy registered several
additional domain names, using the names or acronyms of several
non-profit organizations that support abortion rights, including the
ACLU, the National Organization for Women, and Planned Parenthood, and
Purdy pointed these domain names to his anti-abortion material.  On July
16, you carried a message from Purdy who said he was using those
organizations names because he detested their positions on abortion and
knew that they would not like the content of the websites.
http://www.politechbot.com/p-03764.html. (Interestingly, this
message is in the court record in the case, because at least one of the
Post's lawyers subscribes to your list).

 These groups did not rise to Purdy's bait, but simply ignored him,
although I know for a fact that at least one of those groups was quite
aware of what was happening (if only from your list).  In retrospect, I
have to wonder whether that wasn't the wiser course.  The literature
suggests that it is not unusual for the owners of political web sites to
take advantage of the litigation filed against them to reap more
publicity and more attention for their websites that they would
otherwise attain.  http://www.law.com/jsp/article.jsp?id=1044059430652.
 Have the Post and its lawyers given William Purdy exactly what he
wanted - a load of public attention and the opportunity to be a martyr
for his cause?

I am sending copies of this email to Purdy and to the lawyers for both
sides so that they can respond if they desire to do so.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html

---

From: "William S. Purdy" <wpurdy () attbi com>
To: "Paul Levy" <PLEVY () citizen org>
Cc: "Declan McCullagh" <declan () well com>
Subject: reply to your email to Declan
Date: Wed, 19 Feb 2003 12:35:05 -0600

Feb. 19, 2003

Re:  Reply to Mr. Levy's email to Declan regarding his Amicus brief to 
Eighth Circuit

Dear Mr. Levy,

I don't know about anyone else, but I WILL DEFINITELY file an opposition to 
you motion for permission to file your brief.  I was absolutely SHOCKED at 
the lengths you went to in citing their NON-facts as reasons why the 
appeals court should affirm the preliminary injunction.  I can understand 
your argument where a company, say Hershey's, doesn't want someone to use 
their name JUST TO get viewers to their site - like if someone used 
HersheysLovesGayPorn.com - and then had a bunch of gay porn pics or 
something.  But I do not understand how you could support a preliminary 
injunction that would not allow someone to have HersheysLovesGays.com - and 
then had on the site (with or without a disclaimer) criticisms of Hershey's 
company policy - or anti-gay company statements - that promoted 
discrimination against gays.  And if their policy had contributed to some 
general or societal SUFFERING of gays by discrimination - i.e. some tragic 
murders or something - then to have the pictures of those discrimination 
acts on the site as well.  It's called FREE SPEECH.

I also don't understand how you could not know that individuals have a 
right to LIE or to SLANDER or LIBEL or to SATIRE someone else or a 
company.  You don't get an injunction because what someone is saying is a 
lie, or is a satire, and you know that.  The court allows the person to say 
it, and the company can sue the speaker for damages under the correct 
tort.  The court can't implore a "truth" test to decide whether you can say 
it or not!  So what about the two SAYS domain names of the nine?  I have a 
right to title a page or to say, "ACLUSAYS.com" and then put words in their 
mouth as though it comes from them - or more importantly what in my opinion 
they SHOULD be saying.  It's called satire.  In fact I have such a domain 
name, and the ACLU refused to sue me because they said that the way to 
combat speech that you don't like is WITH MORE SPEECH, not through suits 
aimed at stopping the speech.  They got it right and again, it's called 
FREE SPEECH.

And your statements AS FACT in your arguments that I am a proven 
cybersquatter were absolutely shocking to me.  If you had really looked 
into my case with the BN - or even asked me instead of relying on their 
false statements - you would have learned that it was ME, not the BN who 
owned the U.S. trademark registration for BNSF.  We were in a trademark 
dispute, not a domain name dispute.  But I did have BNSF.org and they had 
BNSF.com.  It was me, not them who asked the court to give ME BNSF.com from 
them.  I took them to court over the domain their domain name.  Their 
response was to get my federal registration VOIDED by a U.S. Texas 
judge.  Then I then filed suit against them for violation of my Common Law 
trademark rights.  They counter sued.  The U.S. Judge here in Minnesota 
ruled that I did have common law rights BUT that they were secondary to the 
BN's common law rights in the mark "BNSF" because my use was Non-Commercial 
- even though he ruled I had actually used it first.  We had both agreed 
ahead of time that whomever he ruled had the first common law rights would 
get the BNSF.org and the BNSF.com.  So after he ruled that they had first 
use rights to the common law trademark rights to the mark "BNSF", he then 
transferred the BNSF.org to them, citing our agreement.  I appealed his 
ruling - that their common law rights went ahead of me because their use 
was commercial and mine was not commercial.  The Eighth Circuit affirmed 
the lower court ruling regarding my use being "second" user because my 
first use had been non-commercial use.  That was it - the word 
cybersquatting NEVER entered the briefs, or even in the lower court 
memorandums.  So stating that I am a known cybersquatter is just plain b.s. 
- b as in B, and s as in S.   It was made up argument, made up "fact", and 
made up NAME CALLING by the Post to get the judge to issue the ridiculous 
injunction it did - and to "protect" them from MY SPEECH about them.  And 
you then you used their made-up name calling too - as a reason to for them 
to affirm the ridiculous injunction.

Also, how can you say in your brief that I have blatantly disobeyed the 
injunction.  If you look at the real facts, you will see that I NEVER ONCE 
registered an "identical" domain name after the July 23, 2002 injunction 
was issued.  The only "disobedience" that they or you can possibly point to 
is registering what they describe as "confusingly similar" domain names - 
like WashingtonPostHARDASS.com, WashingtonPostFETUS.com, 
WashingtonPostSACRILIGE.com and a bunch more.  If you think those are 
"confusingly similar" then you join them in their absolute 
ridiculousness.  According to them however, and now you, I BLATANTLY 
DISOBEYED the injunction to register and use those very domains.  If you 
had really looked, you would have found that I NEVER ONCE registered the 
same domain name - once the court ruled that a particular domain name 
is/was "confusingly similar" and therefore prohibited - i.e.  never 
registered WashingtonPostHARDASS.org after it was ruled that 
WashingtonPostHARDASS.com was "confusingly similar".  But you guys think 
that because if I then dared to then register WashingtonPostDUMBASS.com, 
that I would be disobeying the injunction.  This is laughable.  You forget 
to read the injunction in paragraph 11 where it says I cannot register 
identical or confusingly similar - but the injunction DOES NOT define 
"confusingly similar" and the Post and the court have refused to define it 
or give any guidelines.  And thus I am left to guess - or in their words 
and now in YOUR words - blatantly disobey the injunction if I happen to 
think like everyone else that WashingtonPostHARDASS.com is NOT "confusingly 
similar".

You make very good arguments in 1 and 2 of your brief, but then say in 3 
that in the case of Bill Purdy, all those arguments should be 
overlooked.  And why?  Oh yeah, because I used too small of print in my 
disclaimer - a disclaimer I put up after the Plaintiffs alerted me to their 
objection to my using their name in my anti-abortion campaign.  A campaign 
by the way that was directed at them SPECIFICALLY because of their 
editorial campaign FOR ABORTION.  But even if that is all correct, and the 
injunction on the first nine domain names is proper, how can you possibly 
argue that the court's goofy paragraph 11 regarding future domain names 
that I could register and use is proper?????   Oh yeah, because I made some 
public statements that I would punish the Plaintiffs for their prochoice 
positions!  Yeah, that is a really good argument to prohibit 
speech!!!   And then there is "Purdy's telephone call to the Post's 
lawyers, demanding that they provide him with space on the editorial 
page............................"   Tell me Mr. Levy, where was that "FACT" 
ever decided?  What if I told you that I never demanded any such thing, 
that it was made up by the lawyers as to what I said?  What if I told you 
that NO TESTIMONY, spoken, written, under oath, not under oath - NO 
AFFIRMATIVE TESTIMONY what so ever - was ever entered into the record 
regarding that alleged phone call, and that alleged demand by me?   But 
hey, if the Plaintiffs' say so in their memorandum to the court, then it's 
good enough reason to accept it as fact, and another good reason for Public 
Citizen to argue why the injunction regarding Bill Purdy's future 
registration and use of unknown "confusingly similar" domain names must be 
affirmed.   And of course, don't forget "Purdy's history of cypbersquatting 
is further established by the 'previously affirmed cybersquatting judgment 
against him..........."   Never mind that such a "cybersquatting judgment 
against him" was NEVER issued against him, or EVER affirmed by Eighth 
circuit.  If the Plaintiffs said so in their argument statements, then it's 
good enough for Public Citizen to argue it too - to stop Bill Purdy from 
SPEAKING about the truth of abortion (the graphic pictures of aborted 
babies - the real truth of what abortion is) and the Washington Post's, 
Coca-Cola's, Pepsi's, and McDonalds editorial and financial support for 
that crime against humanity.

You state, "We see no likelihood whatsoever that any Internet user is going 
to type such domain names as WashingtonPostChristian.com or 
WashingtonPostJesus.com into their Internet browser and so be misled to
Purdy's anti-abortion websites."  No shit Sherlock!   This makes the point 
about that there is NO confusion of SOURCE or origin.  And the same can be 
said about WashingtonPostSAYS.com.  Nobody is going to type that name into 
their browser - exactly why there IS NO confusion about the source.  It's a 
statement - a satirical statement about what the Washington Post SHOULD SAY 
- that Abortion Is Murder - instead of what they do say, that Abortion IS 
NOT Murder - that Abortion is Choice and etc.  Again, it's called FREE SPEECH.

Mr. Levy, I still have FAITH in you, and in Public Citizen.  Your 
organization was founded and is supported by one of the greatest 
individuals of our time, Ralph Nader.  I know you HATE my message, and that 
you HATE my methods of speaking my hated message on the internet, i.e. the 
graphic pictures.  But the message, or the method of speaking my message, 
must NOT be allowed to cloud clear thinking about First Amendment 
principles at issue here.  You speculate at the end of your brief that, 
"The names hypothesized above (WashingtonPostABORTS, WashingtonPostHARDASS, 
TheWashingtonPostCHRISTIAN etc.) scarcely pose a genuine likelihood of 
confusion for the plaintiffs, and would, indeed, seem to be a fair use of 
their trademarks to describe plaintiffs' position on an issue of national 
importance.  Should Purdy bring such names to the attention of the district 
court with a proposed nonconfusing website, he might well make a strong 
case for modification of the injunction, in light of the underlying 
principles of trademark law against the backdrop of the First Amendment in 
deciding whether to make the injunction final regarding those 
names."    Gee, that is nice of you and Public Citizen to grant that I may 
have a First Amendment right to register and use those domain 
names!!!!!!!!!!!!!!    I have to tell you Mr. Levy, that I think that as 
much as you hate my message, and as slow as you are to accept my NOVEL 
approaches to speaking my hated message, I think that in time you will 
rewrite no. 3 of your brief.  One and two of your brief were right on, but 
you fail to apply those wonderful arguments in 1 and 2 to me, Bill Purdy - 
and I believe all because you hate the message that I speak.  But if you 
are properly going to protect ALL users of the internet, all speakers of 
the internet, you will sooner or later have to properly defend the FIRST 
AMENDMENT, even as it applies to prolifers like myself.

I remain GRATEFUL for your interest in the case, and for the time and 
energy you have devoted to the issues involved.  I will be filing an appeal 
of the contempt motion(s) and so those domain names mentioned above WILL be 
before the Eighth Circuit.  You and Public Citizen will then have another 
opportunity to address those domain names mentioned above to the Eighth 
Circuit, if you so choose.  I will continue to keep you informed about this 
case and regarding these very important First Amendment issues, and I thank 
you and Public Citizen for all the fine work you do on behalf of all of our 
First Amendment Rights.

Thank you,
Bill Purdy

---

Date: Wed, 19 Feb 2003 13:43:22 -0500
From: "Paul Levy" <PLEVY () citizen org>
To: <wpurdy () attbi com>
Cc: <declan () well com>
Subject: Re: reply to your email to Declan

I do not intend to engage in a running debate on the list.  Declan, I
certainly suggest that you post both his message and mine, along with
anything that the Wilmer lawyers choose to write........

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html




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