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Wednesday, May 16, 2007

Faint Praise for Jerry Falwell

Tony Mauro has mentioned the late Rev. Jerry Falwell's unintended contribution to free speech law with his unsuccessful lawsuit against Hustler Magazine. But the always-controversial Falwell also made some significant free speech law in another of his legal crusades against those who took his name in vain. In Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), the Fourth Circuit allowed a politically-motivated typosquatter to continue criticizing Falwell at fallwell.com (note ye well the spelling). The story is inside . . .

Christopher Lamparello registered the site in 1999 to criticize Falwell's views on homosexuality. After a few years of cease-and-desist throat-clearing, Falwell sued in 2003, claiming trademark infringement and cybersquatting. Fourth Circuit caselaw on cybersquatting in parody and criticism cases had been strongly pro-plaintiff since PETA v. Doughney, 263 F.3d 259 (4th Cir. 2001), in which the court denied a parody defense to a "People Eating Tasty Animals" site at peta.org. The PETA court reasoned:

The domain name peta.org simply copies PETA's Mark, conveying the message that it is related to PETA. The domain name does not convey the second, contradictory message needed to establish a parody -- a message that the domain name is not related to PETA, but that it is a parody of PETA.

This language set what appeared to be an impossibly high standard for any web site whose URL included a trademark. Under it, it doesn't matter what the site actually contains; whatever damage is caused by the "message" in the domain name would already have been done before the user even sees the site itself.

When Falwell tried to rely on PETA, however, Lamparello won by pleading a defense, not of parody, but of no likelihood of confusion. Quite reasonably, the court concluded, "No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible." The most interesting part of the opinion, for my money, is how the court deals with PETA, which ought to have been binding precedent. (Indeed, Judge Michael sat on both panels):

PETA simply outlines the parameters of the parody defense; it does not . . . otherwise diminish the necessity of examining context when determining whether a likelihood of confusion exists.

I've always found this distinction troubling. I don't like that so much turns on whether parody is pleaded as a defense in its own right or merely as a reason to think people wouldn't be confused. (Parody is hardly alone in this incoherence; other trademark defenses float in and out of the likelihood of confusion analysis, depending on the phase of the moon and the judge's middle initial.) In hindsight, the PETA court seems almost to be saying, Doughney would have won if only he'd dropped the parody argument from his appeal. There's also the difficulty that the two-step theory of parody from PETA is basically the "initial interest confusion" theory of trademark infringement, a theory emphatically rejected in Falwell.

My qualms about the case analysis aside, I'm glad that PETA has now been more or less confined to its own facts. It depended on a mechanical one-size-fits-all idea of how the Web works, cut sharply into free speech online, and posed a risk of distorting Internet law well beyond trademarks. Falwell is now the leading trademark parody/criticism case in the Fourth Circuit, and it gives would-be Voltaires plenty of leeway to mock on. For that, we have Jerry Falwell to thank.

Posted by James Grimmelmann on May 16, 2007 at 02:47 PM in Information and Technology | Permalink

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