Fake Political Attack Video Doesn’t Violate Lanham Act–Ron Paul v. Does

By Eric Goldman

Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 3:12-cv-00240-MEJ (N.D. Cal. March 8, 2012)

The Doe Defendants registered the alias “NHLiberty4Paul” at YouTube and Twitter and posted a YouTube video attacking Jon Huntsman. The video ends “American Values and Liberty – Vote Ron Paul.” The Does acted without Paul’s permission–so much so that Paul sued them for violations of the Lanham Act and defamation. After filing the lawsuit, Paul sought to unmask the Does.

The court denies the unmasking request because Paul’s Lanham Act claims weren’t valid. (By doing so, the court sidesteps a battle over which of several different legal standard should govern the unmasking request). The federal court then declines to exercise supplemental jurisdiction over the state-law defamation claim.

The lawsuit’s subject matter is a fake political video. It’s “selling” a candidate (or, more accurately, trying to improve the competitive posture of candidate A by degrading the attractiveness of rival candidate B), but it’s not selling anything commercial. Rebecca explained this when the complaint was first filed. Because the Lanham Act governs commercial activity, not political activity, it’s clearly inapplicable to this situation.

To try to salvage the situation, Paul tries two mockable arguments. First, he argues that YouTube and Twitter are commercial sites, and that gives the dispute enough commerciality. The court rightly points out that the inquiry is about the defendant’s conduct, not the websites where it took place, and notes the argument’s illogic would mean non-commercial activity on any commercial website would be governed by the Lanham Act. In a footnote, the court adds that “using another company’s commercial website to post a comment or video is just far ‘too attenuated’ to result in an individual’s own conduct automatically meeting the Lanham Act’s commercial use requirement.”

Second, Paul argues that “the video was intended to frustrate Plaintiff’s fundraising efforts and increase the amount of money contributed to Presidential nominees other than Ron Paul.” The court says the Lanham Act is predicated on the defendant trying to improve its competitive status, and these defendants had no competing services; and the video on its face didn’t try to solicit any donations.

In this case, it seems likely that the Does would suffer extra-judicial punishment if their identity gets revealed, irrespective of the case’s merits. Kudos to the judge for aggressively gatekeeping the unmasking request rather than just rubber-stamping it. (Venkat emailed me: “I wonder if N.D. Cal. Judges are savvier at screening out these types of issues since they must deal with so many request to unmask.”).

This case also reinforces that the Lanham Act is not designed to regulate fake content or consumer confusion about the source of content injected into the information ecosystem. But that makes me wonder if other reputation-protective legal doctrines might apply better, including defamation (kicked to the state court) or perhaps California’s recent e-personation statute.

Some related posts:

* Reputation Management Lawsuit Is Shot Down–Bernard v. Donat

* Court Smacks Down Koch Industries’ Attempt to Shut Down Satirical Website — Koch Industries v. Does

* Griping Patient Goes Too Far Posting Fake Content in Doctor’s Name–Eppley v. Iacovelli