Ron Paul Angers Some Fans By Using the Law--International Law, No Less--to Try to Get RonPaul.com Domain Name


Recently retired Rep. Ron Paul (R-Texas) is being mocked as a hypocrite by those who live to mock him (such as Gawker) and attacked for turning his back on his own principles by some disillusioned fans, because he wants the current users of the the domain name RonPaul.com to give it to him.

What's more, he is willing to follow the procedures set by the governing body of Internet domain names, the procedures the domain name owners agreed to as part of their ownership of the name, to get it back when they informed Paul they wanted $250,000 for the name and its accompanying mailing list.

The lament of the current owners. Excerpt:

On May 1st, 2008 we launched a grassroots website at RonPaul.com that became one of the most popular resources dedicated exclusively to Ron Paul and his ideas. Like thousands of fellow Ron Paul supporters, we put our lives on hold and invested 5 years of hard work into Ron Paul, RonPaul.com and Ron Paul 2012. Looking back, we are very happy with what we were able to achieve with unlimited enthusiasm and limited financial resources.

Last month, after Ron Paul expressed regret on the Alex Jones show over not owningRonPaul.com…dozens of supporters urged us to contact Ron Paul to work out a deal….

The value we put on the deal was $250k; we are getting our mailing list appraised right now but we are confident it is easily worth more than $250k all by itself. Claims that we tried to sell Ron Paul "his name" for $250k or even $800k are completely untrue…

Their letter to Paul includes this offer:

That would include a copy of our 170,000 strong RonPaul.com email list; these supporters proactively signed up for our email updates, they expect and welcome frequent communications, and they are completely "untapped" in terms of donations. This means that you (and/or Campaign For Liberty) could easily make back the purchase price in a matter of days. Only you can put this list to its best possible use, which is why we'd include it as a free bonus with RonPaul.com.

Paul's letter to the World Intellectual Property Center Arbitration and Mediation Center, which argues that Paul has a legitimate, though non-registered, trademark in his name through his long time use of it in commerce, such as book sales.

It also argues the owners of the domain name took it in bad faith with the purpose of selling it, using as evidence two offers the RonPaul.com folk made to Paul to sell, one for $848,000 then the current offer of $250,000 plus throwing in RonPaul.org for free, though the actual offer in my reading is they are offering him RonPaul.org for free irrespective of him paying for RonPaul.com.

There is a point that the legal filings and press reports leave ambiguous, and my attempts to get clarification from the RonPaul.com folk has so far failed, but I'll update it as I learn more: while they write as if they are the domain name owners, they also say they didn't start operation until 2008, and the filings indicate the domain name has been registered since 2001 and that the respondents in his case are leasing it to a "third party for a fee."

The Gawker headline tries to get contemptuous laffs out of "Ron Paul Calls on United Nations (Which He Doesn't Believe In) to Confiscate RonPaul.com."

The RonPaul.com folks also play that card:

Instead of responding to our offer, making a counter offer, or even accepting our FREE gift of RonPaul.org, Ron Paul went to the United Nations and is trying to use its legal process related to domain name disputes to actively deport us from our domain names without compensation.

Below is a copy of Ron Paul's complaint and our original offer to Ron Paul. We have 20 days to prepare a response and we are tentatively looking for a lawyer to represent us in this case.

Hopefully it won't have to come to that!

What in the world is going on? ….now Ron Paul, the Internet grassroots candidate, who was at the right place at the right time to lead the rEVOLution, attacks his own grassroots supporters through an agency of the United Nations to deport them from their own domain names after 5 years of nothing but unlimited, unconditional support on our part?

The "United Nations" part is pure bad faith obfuscation to make Paul look bad in the (pretty irrelevant in this case) Court of Public Opinion. Paul is using the only procedure for redress his has, the procedure that the owners agreed to when they registered the name. It is not unlibertarian to use set agreed-on procedures for arbitration in property rights disputes.

What's really at issue (if anything is….) is using existing law --or on a higher level of abstraction, any existing government provided amenity at all--as a libertarian. It certainly delights non-libertarians to think all libertarians must eschew all the services the government has abrogated arrogated to itself to avoid hypocrisy, and refuse to try to get any return on the taxes mulcted from the libertarian, but few libertarians have felt the same. (Anarcho-Austrian economist Walter Block boldly argues that if you are using government largess in part to spread an anti-government message, you are more entitled to the government cash than a non-libertarian.) There is also the question, controversial among libertarians, as to whether a name is something one can even have a property right in. But control of a domain name in practice assuredly is.

I think evidence indicates Paul is likely mistaken on the facts--the history of the use of RonPaul.com could easily make an objective observer decide that their actions don't obviously provide the requisite "bad faith" for Paul to win. They ran this website for years which in practice promoted his candidacy and his ideas (and yes, sell some stuff), not just to make a quick buck selling it to him. They are offering to sell it to him because he declared that he wanted it.

Ought they, as true fans, give him what he asks for? Ought he, as a believer in property rights, recognize they have established lawful and proper ownership? Hell if I know and not up to me to decide. But there is nothing more sinister or hypocritical at stake than the usual problem of a libertarian in a statist world. And while I'm not a domain name law expert, it strikes me that the ICANN system of establishment of rights by the cyber equivalent of homesteading and then agreement to neutral arbitration about controversies is closer to the dream world of libertarian property ownership establishment and adjudication than anything else in this fallen world, and there is nothing inherently shameful in using it.

If you want to dig deep into the law and practice as it stands of celebrities and "cybersquatting," try here,here, and here. Excerpt from the last, from lawyer with the strangely appropriate to this controversy name Shelley Liberto:

Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.

…..In order to find liability, a plaintiff would have to prove that the registration of the domain name was made "with the specific intent to profit from such name by selling the domain name." The registrant's own "subjective intent" to profit from the sale of the domain name must be proved….

The violation of a person's individual name as opposed to a trademark also draws less penalty than an act of cybersquatting on someone's trademark. With respect to an individual's name, the aggrieved individual is entitled to an injunction ordering cancellation or transfer of the domain name, as well as costs and attorneys' fees. In the case of trademark cybersquatting, the plaintiff would be entitled to defendant's profits and up to three times provable damages. 

It is by no means cut and dried that Paul will win. Consider the case of Tupac, as discussed in a journal article from the Santa Clara Computer and High Technology Law Journal on cybersquatting:

In  The Estate of Tupac Shakur v. R.J. Barranco, the Panel sought to determine whether the domain names <tupac.net>  and<tupac.com>  were  registered  and  being  used  by  the  Respondent, Barranco,  in bad faith. Despite an obvious lack of trademark rights, Barranco  was,  nonetheless,  found  to  have  legitimate  rights  in  the domain  names  because  he  operated  a fan  site  with  information  on Tupac  Shakur,  offered  vanity  email  addresses  and  hosted advertisements  linking  to  officially  licensed  Tupac  Shakur merchandise. Even  though  the  Panel  found  that  the  common  law  trademark rights  in  'Tupac'  and  the  disputed  domain  names  were  "patently identical,"  "[t]he  evidence  clearly  establishe[d]  that  the Respondent does have some [legitimate]  rights" in the domain name.

Barranco,"for multiple years  extended  his time, money and effort providing  at no charge  a web site where he,  other fans  and the general  public may obtain  a variety  of possibly interesting  information  on Tupac Shakur, his music, poetry  and movies. The Panel found  it important  that the  site was  a free  forum where  fans  could discuss  the former  artist and  also  found  it  "significant  that  [Barranco's]  sites  have  clearly indicated an obvious link to the  'official  site,'  expressly disclaim[ing]any affiliation  or representation  of that site."  

…The  Panel  held  that  Barranco's  fan  site  was  not  operating  forcommercial  gain or with the intent to divert customers  or tarnish the 'Tupac'  mark.  Further, the Panel stated that holding otherwise would permit  "persons  in  the  position  of this  Claimant  to  unjustly  enrich themselves  by  confiscating  the  work  of  fans  and  admirers  in establishing  a web  site  supporting  their  favorite  artists  without  any opportunity  for  compensation." The  Panel  stated  that  the  entire dispute  was  a  result  of  "the  neglect  and/or  inattention  of  the Claimant,"  because  it failed to register the domain;  transfer  was thus refused based on the legitimate rights of Barranco.

From that same article, on the evidentiary hurdles Paul's challenge must clear:

The  bad  faith  element  attracts  the  most  attention,  as  Paragraph4(b)  of  the  UDRP [Uniform Dispute Resolution Policy]  is  dedicated  to  clarifying  what  constitutes registration  and use in bad faith.  Most cases  of 'true'  cybersquatting involve  "circumstances  indicating  that  [the  registrant  has]  acquired the domain primarily for the purpose  of selling, renting, or otherwise transferring the domain registration…  for valuable  consideration  in excess  of… documented  out-of-pocket  costs." Bad faith may also be shown when  a domain name is registered  "in  order to prevent the owner of the trademark  or service mark from reflecting the mark in a corresponding  domain" or "for the purpose of disrupting the business of a  competitor." Finally, attempts  to attract, for  commercial  gain, Internet  users  to  a particular  web  site  "by  creating  a  likelihood  of confusion  with  the  complainant's  mark  as  the source,  sponsorship, affiliation, or endorsement"  also  constitute  evidence  of bad  faith  use and registration.

Discussion about this whole dispute from TechDirt, LewRockwell.com, the Daily Paul here and here, and Ron Paul Forums.