Tuesday, January 4, 2011

SBC Cybersquatting

Peter Lumpkins is a clever guy with a provocative sense of humor. When I saw his latest post, coy as it was, I was intrigued. When I clicked on the link and saw that the domain name southernbaptistconvention.org took me to the Founders web site, I grinned a big grin and wondered to myself who pulled this prank on Tom Ascol and the guys over at Founders.

I am not a Calvinist, but I am not an anti-Calvinist. I am, after all, the guy who authored the blog post Thank God for Calvinists. I have collaborated with Tom Ascol on the Regenerate Church Membership Resolution. I supported Al Mohler for the presidency of the SBC. I am not an anti-Calvinist, although I am not a Calvinist.

So, when I saw Peter's post, I presumed that somebody had pulled some electronic hijinks in order to tweak the folks over at Founders. Curious as to who was behind all of this, I performed a WHOIS search on the domain southernbaptistconvention.org. What did I find? Look for yourself. The domain southernbaptistconvention.org was apparently registered by Tom Ascol, or perhaps by the Reisingers, since barbreisinger@mac.com is the contact email for the registrant. And the page that you land on over at Founders does appear to be designed for people coming from this particular domain name.

It seems to me that this is cybersquatting, pure and simple. By a technicality (i.e., Founders is not trying to resell the domain name to the SBC at an inflated price) it is not illegal, but it surely is unethical.

The folks at Founders are good people who love the Lord. They've made a mistake with this (don't we all make them sometimes?). I'm sure they'll fix it. I hope they will. The aggrieved and defrauded party, after all, is the Southern Baptist Convention. And the Southern Baptist Convention is me (and a large portion of those of you who read here).

87 comments:

wadeburleson.com said...

"I grinned a big grin and wondered to myself who pulled this prank."

"By a technicality it is not illegal, but it surely is unethical.The aggrieved and defrauded party, after all, is the Southern Baptist Convention."

Bart, why do you have a "big grin" when you think someone is "tweaking" the Founders and Tom Ascol with this site, but ....

When you discover the Founders and Tom Ascol purchased the domain to the site, suddenly your "big grin" turns into a concern regarding ethics?

It would seem to me that a genuine concern over the ethics of this site being attached to the Founders would never have elicited a "big grin" from you in the first place.

Just trying to ensure your concern is over a principle and not particular people.

Bart Barber said...

Wade, if Founders is joking, Then I'll keep on grinning. When I ceased to believe it was a joke, then I stopped grinning.

Bart Barber said...

Of course, if my having said so in the original post wasn't good enough for you, one wonders how my reiterating myself will be any more likely to avail.

Anonymous said...

Bart,

Our Enid brother says, "Just trying to ensure your concern is over a principle and not particular people."

Yes indeedy. The old stand-by--ignore your point completely about the scruples of "cyber-squatting" by switching the focus to you personally--as if no one is capable of noticing.

Marathana.

Come Lord.

With that, I am...
Peter

Doug Hibbard said...

I'd be more concerned if a typical websearch for "Southern Baptist Convention" pulled that link equal or above the actual SBC.net site.

As it is, it's a page that presents one view of the SBC, headed with a link to the actual SBC site.

I'm more concerned with this question: Who's got southernbaptistconvention.com and has had it since 2002 with no content up? And what are the plans there?

Because, really, I don't see lost people being misled from the Gospel by Founders, and surely no pastor would be so shallow as to take his entire view of life from one website, right?

As I think about it, though, that is a good ethical question. Is it right? Again, the site doesn't claim to be official and does link to the official one. Not sure if it's surely unethical or not, especially without the history of how the link and page got put up. After all, there was a time when people were snatching up domain names, perhaps a well-meaning Calvinist got this one because it was available, offered it to the Executive Committee who said "No thanks, we've already got one, you see?"

Or this exposes the great hidden plan of a name change: let the Founders have Southern Baptist Convention . org! We'll soon be (I never have figured out what)!

Doug

Bart Barber said...

Doug, with regard to "concern" I have to agree with you. I'm not going to sit up nights worrying about this. ;-) The Southern Baptist Convention will survive the damage done to it by the purloining of both the .org and the .com variants of what should be its own domain name. People are lost and going to Hell. Christians are being bombed to martyrdom in Egyptian churches. Those are things to be "concerned" about!

And yet, relatively unconcerned as I am, there is no doubt in my mind that this is a patently unethical thing to do.

I would not consider it unethical for Founders to have the domain name southernbaptist.org. There are a lot of Southern Baptists out there, and Tom Ascol is certainly among them. Founders is indisputably full of them.

But when you add "convention" onto the end of the thing, then you've crossed a line. I am a Southern Baptist, but I am not the Southern Baptist Convention. There is clearly one and only one party to whom that domain name belongs.

What if I had the domain name apple.com? I'm an Apple fan. I have a house full of Apple devices. If I'm accessing the Internet, I'm probably doing so with Apple technology at multiple points along the path from my finger to cyberspace.

And yet, my liking the people to whom apple.com clearly belongs is not the same thing as my BEING the person to whom apple.com belongs.

It would be different if I, say, owned an apple orchard. Some argument might be made there. But even if I owned an apple orchard, it would not be right for me to own applecomputer.com.

The only possible reason for me to use a domain name that clearly belongs to someone else is for me to try to use to my advantage the popularity of someone else's name.

The Internet is new. The ethics of using the Internet is correspondingly new. Founders ought not to be chained to the stocks in the public square for three days.

But they ought to be able to recognize that this is indeed unethical. And they ought to correct the situation.

Doug Hibbard said...

Bart--

Good points. Worth the contemplation, not that I can do anything about it or will even remember it's an issue in the morning. Maybe the Founders folks will address this at some point.

Of course, this is a terrible slip in the great nefarious secret Calvinist conspiracy. To be undone by a webpage and a WHOIS search, that just hurts.

Doug

wadeburleson.com said...

Peter and Bart,

So cybersquatting as a joke elicits grins. Cybersquatting that's not a joke elicits moral pronouncements.

Would either one of you laugh when a person gets drunk, whether the drinking was all in fun or not?

You have made a moral judgment of Tom Ascol and the Founders Conference ("what they did is maybe not illegal, but it is unethical") based upon whether or not someone was "joking."

I may, or may not, agree with you on the ethics of cybersquatting. It seems that the power of both your arguments that cybersquatting is "unethical" is diluted by your evaluation of others motives(i.e. "If my friends did it as a joke -- great! Rut roh, they didn't. Then shame on the Founders!")

The only reason I am pointing this out is because if I ever came across someone who purchases a domain and attaches your name to it, along with other choice descriptive words, and then simply declares "its a joke," I'm sure that the measurement you take of the ethics would be different than the one you have displayed here.

Bart Barber said...

Wade,

Certainly in the ethics of joking, it is an important measure to evaluate how I would feel if I were on the receiving end of the joke. And certainly, thoroughly human as I am, I frequently err in seeing as funny that which ought not to be.

But I think your observation arises less out of the particulars of this case and more out of your dogged determination to construe me, things I write, and things I do in as negative a light as possible. That's the delicious irony here: The insinuation is itself an instance of what is being insinuated.

This is not a case of "choice descriptive words" being used to besmirch anyone's name. Indeed, what makes your observations so entirely baseless is that, if somebody HAD pranked Founders by setting up this domain name, the only way that the prank could be construed as tortious would be if you held such a low opinion of Southern Baptists (or thought that Founders held such a low opinion of Southern Baptists) that it would be insulting to them to associate them with the Southern Baptist Convention.

If I were to direct the domain name southernbaptistconvention.com toward the Independent Fundamental Baptists, then THAT would be tortious, I think, since they would generally be neither amused nor flattered by being associated with the SBC. That's not the case with Founders, since they apparently sought out this domain name for themselves. (By the way, I'm not endeavoring to us the word "tortious" here in any way as to suggest that I am an expert on the law. I just mean by it "something that causes harm")

But no harm would have been done to Founders either way. The name "Founders" itself, in combination with the origin and use of that particular name, implies a belief that the members of that organization are in some way the "real" or "legitimate" Southern Baptist Convention (i.e., the one's truly entitled to the legacy of the convention's "founders"). I thought that somebody had set up the domain name as a commentary on that, suggesting that Founders saw themselves as the true southernbaptistconvention.org.

I thought it was clever. I grinned. If that offends you, then I'm sorry. I assure you, I've grinned at a thing or two that you and Ben have trotted out down through the years.

Bart Barber said...

Doug,

"the great nefarious secret Calvinist conspiracy"

;-)

Anonymous said...

Bart,

Once again, old friend, Enid cannot not ignore the single point you raise only to

a) slam you for judging another's motives

b) lift himself up as the perceptive, courageous, see-through-YOUR-thin-veneer-moral-duplicity-YOU-obviously-display by pointing out "if I ever came across someone who purchases a domain and attaches YOUR name to it...I'm sure that the measurement YOU take of the ethics would be different than the one YOU have displayed here" (all emphasis mine)

By that last line I take it YOUR motives are, shall we say, questioned.

Oh well, my brother. Tis a good thing the old blogging days are ore...

Grace.

With that, I am...
Peter

Bart Barber said...

Anonymous,

Once again: Your pastor, at the church that you attend every week. If there is no church that you attend every week, let it begin Sunday. This is not a dating site; it is my blog. Your comments about your romantic life will be deleted as soon as I notice them. This will happen every time.

It is unhealthy for you to go about trying to make the most important decision of your life by seeking the counsel of people whom you do not know and who do not know you. Your pastor. Your church. Not here.

Bart Barber said...

Look, anonymous, I would also delete all of your comments if you were coming onto this blog site to ask me to guide you through the process of removing your own spleen with a butcher knife. I would not be qualified to give the advice, and even if I were, the manner in which you would be going about securing your splenectomy would be an incredibly foolish approach.

The most loving thing that I would be able to do in that circumstance would be to say, "Get off this blog. Go see your doctor."

So, I'll say it one last time: Get off this blog. Go see your pastor at the church that you attend every Sunday. If there is no church that you attend every Sunday, then start somewhere this Sunday. Attend every week. Develop a relationship with a pastor. Then, ask THAT pastor to help you.

I will not permit any of those comments on this blog. Period.

wadeburleson.com said...

Peter and Bart,

Contrary to what it seems you both feel (maybe more Peter than Bart), my motive in pointing out the inconsistency in the moral arguments of the post is not to put either one of you in a poor light.

I am suggesting that if something is unethical, there should be no grins about it. That's all.

Of course, I could not care less if you grin about cybersquatting or not. My simple point is that the impact of your moral outrage over certain cybersquatting is lost when you do.

If the weakness of your argument reflects poorly on you, there is no pleasure derived from me.

I am doing you both a favor. Maybe an unwanted favor, but nonetheless, a favor.

Bart Barber said...

One great drawback of the Internet: The medium being what it is, one is deprived of the opportunity to see whether things are being said with a straight face or not.

Bart Barber said...

OK, Wade. Back to you...

I'm just not seeing the "moral outrage" that you say provoked you to comment:

"The folks at Founders are good people who love the Lord. They've made a mistake with this..."

"The Internet is new. The ethics of using the Internet is correspondingly new. Founders ought not to be chained to the stocks in the public square for three days."

This is "moral outrage"???

Anonymous said...

Bart,

Again, our Enid friend fails to understand his curious interjection into this thread. Nor does he seem to grasp while he glories in alleged inconsistency in others, he cannot plainly see up his own skirt. Go figure...

Even so, the premise is, there exists some moral inconsistency in grinning on the one hand and outrage on the other. No proof, of course. But then again, Enid has never been much for operating on unquestionable proof's premises.

And I'd bet a week's worth o' starbucks he yet sees the light. Instead, he predictably will come back yet again not dealing with YOUR point but with YOUR person.

With that, I am...
Peter

Bart Barber said...

Anonymous,

Look at what you are doing. Your putting up comment after comment about your personal life into a forum where they don't belong, before people whom you do not know and who do not know you, having each of them deleted the moment that they hit the list, and yet you continue to post them.

Is that healthy behavior?

Get help. You need help. Not cyber-help; real help with real, live people. Go to your pastor. Go to him today. Call right now. Turn off your computer, pick up your phone, and call right now.

wadeburleson.com said...

Peter,

You lose!

Please send the starbucks card to 2505 W. Garriott, Enid, Oklahoma 73703.

I drink a venti non-fat caramel machiatto - $4.60. One per day.

Seven times $4.60 is $32.20 but if you send a $30.00 card we'll call it even.

If you don't, it will be called something else.

:)

Dave Miller said...

I don't find it funny to joke about gambling! I'm Baptist!

And I am a little nauseated at the mental picture Peter's words left,

"Nor does he seem to grasp while he glories in alleged inconsistency in others, he cannot plainly see up his own skirt."

I sure hope not.

Anonymous said...

Pastor Burleson,

Actually, I think neither of you "won". Your next post again did not deal with Pastor Barber's point. But at least this time you didn't make your point about Pastor Barber.

D.R. said...

Bart,

While I greatly respect you and do understand you having some concern here, I don't think you've made your point that this act by the Founder's Ministry is any way "unethical".

Cybersquatting, by definition, is unethical because the practice regularly involves targeting businesses for monetary profit or in hopes of hurting the business or organization in question.

I don't think you really believe that Founders is trying to do that. I think you ought to give them some benefit of the doubt that in registering this domain and directing to their site, they did hope to present at the least 1) The Gospel, 2) A positive view of Southern Baptists, and 3) A perspective within the convention that even you, yourself, have acknowledged is generally positive and helpful.

To go and call this cybersquatting and unethical, for me, is far too critical and pessimistic. I do hope that you would see that without a clearly nefarious motive by the Founder's Ministries, this action should be seen as neither "Cybersquatting", nor specifically "unethical".

It may be that the Founder's enjoy some advantage for their ministry in holding this domain name, but I think you would be hard pressed to prove that they have benefited improperly or have in any way damaged the Southern Baptist Convention in doing so. And so in that regard, I see nothing unethical about their actions.

Bart Barber said...

D.R.,

Thanks for joining the comment thread, and thank you for your kind words toward me.

I remain convinced of my case, although I accept your suggestion that I have not yet done all that I ought to do to make that case online. I'll try harder:

1. Is it "cybersquatting"? I don't see how this is even a matter of opinion.

a. There is such a thing as the Southern Baptist Convention. It is an "organization" that would appropriately be able to use the ".org" TLD. There are not several Southern Baptist Convention organizations such that any ambiguity exists as to who might be the appropriate user for that name. If any person, not knowing the ownership of the DNS registration, were to type in http://southernbaptistconvention.org, any reasonable person would have to conclude that such a person was trying to find The Southern Baptist Convention.

b. There is such a thing as the Founders Conference. Founders is not the Southern Baptist Convention. Founders does not have any subsidiary or any other anything that is called anything like "The Southern Baptist Convention." There is no readily apparent manner in which "southernbaptistconvention.org" appropriately describes "The Founders Conference." There is no imaginable circumstance under which a rational person, looking for the Founders Conference on the Internet, would say to himself, "I'll try http://southernbaptistconvention.org because that's probably the domain name of The Founders Conference."

c. Founders did not come to register the southernbaptistconvention.org domain name because they didn't know that there was a Southern Baptist Convention; rather, precisely because they knew about the Southern Baptist Convention did they choose to register the domain name. Founders did not register this domain name at the behest or the invitation of the Southern Baptist Convention or as an authorized agent of the Southern Baptist Convention. Founders did not observe that the Southern Baptist Convention did not have a website and then register this domain name in order to provide a website for a Southern Baptist Convention that was bereft of one.

...continued...

Bart Barber said...

d. So, whatever Founders may have been trying to accomplish thereby, what Founders has done seems pretty clear—they have chosen to trade for themselves on the name and reputation of the Southern Baptist Convention.

2. Does it harm anyone?

a. It harms the person who is really looking for the Southern Baptist Convention but winds up misdirected somewhere they wished not to go. I know that I've mistyped domain names or otherwise entered URLs that represented my intention to go to one site, only to find that I was misdirected somewhere else. I did not think kindly of those who deliberately set a trap for me to get me into their websites. This is simply that.

b. It harms the person who believes that Calvinists and non-Calvinists can coexist peacefully in the Southern Baptist Convention, valuing one another. You have correctly categorized me as such a person. For Founders to hijack the domain name southernbaptistconvention.org is for Founders to substantiate every fear, confirm every stereotype, fuel every suspicion, and vindicate every conspiracy suggesting that SBC Calvinists are really out to take over the convention and show everybody else the door. And even for those who do not indulge in such concerns, it smacks of a disrespect for all of the other constituencies of the convention who are also, just as much as the Founders are, rightful claimants to the Southern Baptist Convention.

3. Is it intentionally malicious?

a. I have not succeeded in making that case because I have not attempted to make that case. It is possible to do something unethical and to do it inadvertently. The malice, or lack thereof, is shown by what someone does when the unethical nature of the behavior is pointed out.

b. The content of the page in question does include materials designed to suggest that a particular view of election is the view of election appropriately pertaining to Southern Baptists. If the reason for hijacking the domain name was to present Calvinistic theology as the definitive view of election in the Southern Baptist Convention, then that would indeed be an action injurious and malicious toward every Southern Baptist who is not a part of Founders.

Bart Barber said...

OK. That's my case. Thanks for participating in the discussion. I'm trying to be fair, and if my reasoning is unfair in some way, please help me do better.

Bart Barber said...

Wait. Let me clarify two other things before I go...

1. There is nothing being done for the gospel at the Founders page that is not being done on the SBC's home page. The gospel is presented there, too, along with the Baptist Faith & Message—the actual doctrinal position of the convention.

2. I don't have any problem with Founders using the Internet to advance their viewpoint that staunch Calvinism is indeed the rightful historic Southern Baptist theology. The problem comes when that viewpoint is enshrouded in the southernbaptistconvention.org domain name. It is one thing for a person to learn that Founders advocates this point of view. It is quite another thing for people to be led to believe that the Southern Baptist Convention has embraced the Founders viewpoint as its own.

D.R. said...

Bart,

Good points, but let me address some issues I have with them.

1) You say that "Is it "cybersquatting"? I don't see how this is even a matter of opinion." You then go on to list your reasons why it is cybersquatting, but they don't reflect the definition given at the article you linked off wikipedia.

That definition is:

Cybersquatting (also known as domain squatting), according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price (all emphasis above is mine).

According to your own cited definition, the Founder's usage of southernbaptistconvention.org does not qualify as "cybersquatting."

As I pointed out above, "Cybersquatting, by definition, is unethical because the practice regularly involves targeting businesses for monetary profit or in hopes of hurting the business or organization in question." Therefore, I don't think you can legimitely call this "cybersquatting" and since what the Founder's did is not by definition "cybersquatting", the question of whether it is ethical cannot be defended from this.

What you've done (completely unintentionally) is essentially "poison the well" so to speak. You have used derogatory and pejorative terminology to paint the picture of unethical behavior without first determining whether the act itself is unethical. Again, I don't think this is intentional, but I do think it is a misuse of the term "cybersquatting" (again, based on your own given definition).

I must stop there for now. I will deal with the other parts of your argument when I get more time.

Bart Barber said...

Thanks, D.R. You make a good argument. I think that it falls short, but for reasons that are not your fault.

The Wikipedia article is a bit misleading. Read it further and you'll see that the standard definition for cybersquatting comes from the Uniform Domain Name Dispute Resolution Policy. Look up the UDRP and I think you'll see that Founders's action, although it is not a criminal violation of ACPA, does violate the terms of UDRP that Founders had to affirm in order to register the name.

It is unethical at least in that sense—Founders's use of southernbaptistconvention.org is in violation of the agreement made (I know, nobody reads them) when the name was registered.

Bart Barber said...

I failed to finish off my thought. Sorry...

...and because it is a violation of UDRP, it qualifies as cybersquatting.

D.R. said...

Bart,

Before I move forward in my critique of your other arguments, let me deal with your latest one in regard to "Cybersquatting". Below is the full document found on the ICANN site, the organization that establishes the UDRP (I changed some of the formatting to make it easier to respond):

ACPA Cybersquatting Definition

Cybersquatting is the unauthorized registration or use of trademarks as Internet domain names that:

(1) results in consumer fraud and public confusion as to the true source or sponsorship of products and services;

(2) impairs electronic commerce,

(3) deprives owners of trademarks of substantial revenues and consumer goodwill.

UDRP Cybersquatting Definition

A complainant in a UDRP proceeding must establish three elements to succeed:

1) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
2) The registrant does not have any rights or legitimate interests in the domain name; and
3) The registrant registered the domain name and is using it in "bad faith."

In a UDRP proceeding, a panel will consider several non-exclusive factors to assess bad faith, such as:

1) Whether the registrant registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark;
2) Whether the registrant registered the domain name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, if the domain name owner has engaged in a pattern of such conduct; and
3) Whether the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
4) Whether by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, internet users to the registrant's website, by creating a likelihood of confusion with the complainant's mark.


In my next comment I will address the specifics of why this shows that what the Founder's did was not "cybersquatting".

D.R. said...

Bart,

Now, let's consider each aspect of the definition, complaint criteria, and UDRP panel review factors that ICANN provides for "Cybersquatting".

Defintion:
1) Founder's clearly did not seek to commit consumer fraud. Nor did they intentionally attempt to create "confusion as to the true source and sponsorship of products and services". They're upfront that they are an SBC related (not SBC-run) ministry representing a view within the SBC which the majority of current SBC Churches don't adhere to. Additionally, as pointed out previously, they do link to the SBC.net site.
2) Nothing they do in holding this domain name "impairs electronic commerce".
3) It's hard to argue that the 1 site (which per my Google search for "Southern Baptist Convention" didn't return a listing for said website address for at least the first 100 results) "deprives owners of trademarks" in any real way. Nor does this ownership "deprive owners...of substantial revenues and consumer goodwill".

Complaint Criteria (note that this section says "A complainant in a UDRP proceeding must establish three elements to succeed"):

1) I concede that this does apply to the Founder's situation.
2) It could be argued that while the Founder's don't have any rights to the domain name, they certainly have legitimate interests as an SBC-related ministry made up of SBC Churches and having the intention of reforming the SBC.
3) I think we've established already that the Founder's isn't using the domain name in bad faith.

Thus, any complaint made by the SBC regarding the domain name registered by the Founder's would fail according to the UDRP's definition and complaint criteria.

UDRP Panel-Proceeding Factors:

1) It hasn't been and isn't likely to be established that the Founder's were attempting to register the name for the purpose of selling it.
2) It is likely the SBC had already established SBC.net before their registration, thus Founder's is highly unlikely to have trying to harm the SBC's establishment of their online trademark. Additionally, there is no pattern of such conduct by Founder's.
3) I don't think there's a question as to whether Founder's was trying to disrupt the SBC.
4) The Founder's were likely trying to attract people to their site, but realistically they do little to nothing on the site that relates to financial gain, thus this is unlikely as well.


So Bart, not based on two independent sources you provided (one you referenced as an authority), do you still believe that the Founder's use of southernbaptistconvention.org is truly "Cybersquatting"?

And do you still stand by your statement that "the standard definition for cybersquatting comes from the Uniform Domain Name Dispute Resolution Policy" is applicable to the Founder's use of this domain name?

I think you're a reasonable guy and I'm hoping you've seen I've made my case and that this term is misleading and inappropriate to use in regards to the actions of the Founder's.

Anonymous said...

Brother Bart,

Why don't we call it what it is? A out-n-out falsehood with a false presumption that Founders is the location for everything that is SBC. That D.R. Goes to motive.

Blessings,
Tim

Doug Hibbard said...

All of us that are now bickering about this probably should consider one additional thing:

The WHOIS data shows this website was registered in 2001. So, it's been around 10 years and hasn't bothered anyone until now.

There's probably one other thing to be aware of, and that is that Tom Ascol and a few others from his church are on a mission trip, Haiti, I think. And just like any of the rest of us probably wouldn't worry about this until we got back from a trip, I doubt you'll see or hear any response from Founders until at least then.

You might. Then again, you might never hear them say anything about it.

Doug

Doug Hibbard said...

Oh, and your anonymous friend dropped by and posted similar comments on my family blog. I gave him the same guidance you did. Surely there's a pastor in Texarkana he can talk to.

Doug

Anonymous said...

Bart

A couple of things. The exchange between you and D.R. is interesting but in many ways irrelevant. Neither of you, so far as I am aware, are steeped in law; hence, making firm conclusions on the legal definition of “cybersquatting” and how it plays (or would play) out in our justice system is an exchange more productive for those who are trained in law.

Even so, it remains unnecessary to limit the discussion to whether “cybersquatting” in its legal sense has been pursued by Founders. Assuming Founders has not breached legalities, it obviously follows they have not committed “cybersquatting” in its legal sense, as D.R. has argued. The question remains, does it follow that since presumably no legal issue is relevant, therefore Founders in no sense is “cybersquatting”? This is where I think you allowed D.R. to stick his spoon in your stew.

The fact is, even if it could be shown that Founders breached no legal barriers keeping them from potential criminal activity, nothing follows except Founders did not breach barriers which kept them from criminal activity. Hence, D.R. is surely wrong in his conclusion: “…I don't think you can legimitely [sic] call this "cybersquatting" and since what the Founder's did is not by definition "cybersquatting", the question of whether it is ethical cannot be defended from this”.

Granting for argument’s sake D.R. is correct that one may not legitimately call this "cybersquatting" in its legal sense, it does not follow Founders’ practice cannot be legitimately called “cybersquatting” in any sense which is precisely where D.R. is pinching the back of your arm.

continued below…

With that, I am…
Peter

Anonymous said...

Bart

continued from above…

Allow a simple parallel: “bribery” is a criminal activity. The legal dictionary defines bribery in the following way: BRIBE, crim. law. The gift or promise, which is accepted, of some advantage, as the inducement for some illegal act or omission; or of some illegal emolument, as a consideration, for preferring one person to another, in the performance of a legal act.”

Now there’s obviously more to the legal sense than this single definition and many nuances could be added, subtracted, and even better definitions supplied. Nonetheless, we at least get the proper sense that “bribery” can be a criminal activity when it meets certain criteria which involves, at minimum, turning your head to illegal activity upon receipt of a “gift or promise” etc. The question is, are we restricted to using the term “bribery” only in its legal sense?

For example, when we describe certain activities which, while not illegal surely are against our normal policies or protocol, are acceptable when offered a little self-interest on the side, do we not legitimately dub the practice “bribery”? Not “bribery” in its legal sense but in some other sense (be it moral, non-technical, non-criminal, etc.). Pastors are faced with those who bribe them in many ways—whether it’s to look the other way about membership criteria for a certain prominent family, some aspect of the building program, taking a new car from a manipulative church leader, or other—though nothing illegal at all took place. Am I to understand the term “bribery” simply cannot legitimately be employed in such relevant cases because no laws were breached? D. R. seems to think since the Founders has no activity which can be viewed as “cybersquatting” in its exclusively legal sense, then the ethical sense disappears.

Let’s put D.R.’s conclusion up again and substitute a “bribery” scenario instead of “cybersquatting” : I don't think you can legitimately call the Pastor’s taking a new car, and then turning his head toward Bill’s situation "bribery"; and since what the Pastor & Bill did is not by [legal] definition "bribery", the question of whether it is ethical cannot be defended from this.”

Unless we insist terms like “bribery,” “extortion”, “fraud”, “slander”, and even “corruption,” which has a legal definition itself are legitimate only in their legal sense, it remains difficult to argue “cybersquatting” is only legitimate in its legal sense and in no other sense including a moral sense.

The point is simple, and you, Bart, alluded to it in your original post: “By a technicality, [Founders action] is not illegal, but it surely is unethical.”

With that, I am...
Peter

Joe White... said...

Bart,

Thank you for this post and for having the courage to stand by it. That this domain name has been registered since 2001 means that it has likely been renewed several times. Honestly, I am shocked by this willful deception and the attempts to defend it!

I believe open repentance and the turning over of the domain name southernbaptistconvention.org to the Executive Committee of the SBC is the proper response from Tom Ascol and Founders.

Bart Barber said...

Good morning, D.R. I hope that you had good Wednesday evening services last night in Georgia. Here we considered Abram, God, William Blackstone, and Karl Marx while making our way through Genesis 12:1-9. In other words, we considered God's action of giving the Canaanites' land to Abram and measured Blackstone's labor-theory of private property and Karl Marx's rejection of private property against what God did in this chapter, working toward a biblical view of material possessions. It was great fun!

Everybody, if you preached or taught last night, drop something into the thread about what you covered. It might be a nice little blessing alongside my droning on about the UDRP and cybersquatting, which I resume in the next comment.

Bart Barber said...

Doug, thanks for highlighting for everyone where Tom is and what he's doing. Let me reiterate something important: I'm not mad at Tom. I don't think that Founders has committed a crime. I think that they've made the mistake of doing something unethical—cybersquatting an SBC domain name. He doesn't owe a response to me as an individual, although I hope that Founders will reconsider what they've done with this domain name.

Also, Doug, thanks for helping me to push anonymous to get person-to-person help. Let us both agree to pray for our troubled anonymous commenter. It is indeed hard to be lonely, and even when the compassionate thing to do is to act firmly, our firmness ought to be with compassion.

Now, back to the main event...

Bart Barber said...

D. R.,

I think we're making good progress here, narrowing down particularly where we disagree, such that we can set aside areas of agreement as matters resolved. The UDRP sets out three criteria that define cybersquatting:

1. We both agree, it appears, that the first criteria has been met. The domain name is identical to the name of the Southern Baptist Convention. This is a name to which the SBC has rights.

2. We appear not to be in agreement that Founders has no rights to the use of the domain name. And yet ICANN specifies what it requires to assert rights to a domain name (These engineers define everything. Do you have one in your church?) By meeting any of three criteria, Founders could assert rights to the domain name:

i. "Before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services." This wording could be a bit confusing, so allow me to clarify. It is not talking about the use of the domain name as a domain name per se. Notice the appearance of the phrase "or a name corresponding to the domain name." It is talking about the branding of the organization or of its goods or services under either the domain name or a name corresponding to the domain name.

So, the question on this first point is simply this: Has Founders ever solicited membership or sold conferences, books, journals, etc., under the trade name "Southern Baptist Convention"? Not to my knowledge. The first point of asserting rights is lost to the Founders.

ii. "You (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights." So, even if you've never offered a product or service under this name before, if it is a common name by which you are known, then you have rights to assert.

But Founders has never been known commonly as "The Southern Baptist Convention." The second point of asserting rights is lost to the Founders.

iii. "You are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."

Here is the heart of our dispute. I could stop here and move to the conclusion, but I think there could be some value in being thorough. At this point, I'll simply say that Founders' use of the domain name southernbaptistconvention.org is indeed a commercial use and is not a fair use of the domain name.

--continued--

Bart Barber said...

D. R.,

I think we're making good progress here, narrowing down particularly where we disagree, such that we can set aside areas of agreement as matters resolved. The UDRP sets out three criteria that define cybersquatting:

1. We both agree, it appears, that the first criteria has been met. The domain name is identical to the name of the Southern Baptist Convention. This is a name to which the SBC has rights.

2. We appear not to be in agreement that Founders has no rights to the use of the domain name. And yet ICANN specifies what it requires to assert rights to a domain name (These engineers define everything. Do you have one in your church?) By meeting any of three criteria, Founders could assert rights to the domain name:

i. "Before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services." This wording could be a bit confusing, so allow me to clarify. It is not talking about the use of the domain name as a domain name per se. Notice the appearance of the phrase "or a name corresponding to the domain name." It is talking about the branding of the organization or of its goods or services under either the domain name or a name corresponding to the domain name.

So, the question on this first point is simply this: Has Founders ever solicited membership or sold conferences, books, journals, etc., under the trade name "Southern Baptist Convention"? Not to my knowledge. The first point of asserting rights is lost to the Founders.

ii. "You (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights." So, even if you've never offered a product or service under this name before, if it is a common name by which you are known, then you have rights to assert.

But Founders has never been known commonly as "The Southern Baptist Convention." The second point of asserting rights is lost to the Founders.
--continued--

Bart Barber said...

iii. "You are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."

Here is the heart of our dispute. I could stop here and move to the conclusion, but I think there could be some value in being thorough. At this point, I'll simply say that Founders' use of the domain name southernbaptistconvention.org is indeed a commercial use and is not a fair use of the domain name. I'll substantiate in a later comment, so that I only have to type it once.

Suffice it at this point to seek this point of agreement with regard to the second criterion: If Founders is using the domain name southernbaptistconvention.org. in a commercial manner, then the second criterion of the definition of cybersquatting has been met and what Founders is doing is indeed cybersquatting.

3. We disagree with regard to whether Founders is using the domain name in "bad faith."

In the UDRP, ICANN gives four ways in which a domain can be registered in "bad faith." I have never meant to assert that any of the first three are the way in which Founders possesses this domain name in bad faith. Rather, Founders is clearly in violation of the fourth criterion which makes theirs a bad-faith usurpation of this domain name in which Founders has no right and the SBC does have rights.

Criterion three ultimately rests on the same foundation as that of criterion two: The fact that Founders is using this domain name commercially.

--continued--

Bart Barber said...

Founders sells itself. Founders sells Calvinism. Founders also sells materials related to itself and Calvinism.

I don't mean this to sound crass or inappropriate. It is perfectly legitimate for Founders to sell itself, to sell Calvinism, and to sell materials related to itself and Calvinism. It simply is not appropriate to do so by the use of someone else's domain name.

Not-for-profit is not the same thing as non-commercial. Founders operates commercially.

Let's look at the menu links at the top of the page:

1. "HOME"—at the top of the resulting page is an ad for the Founders Journal, which is a paid subscription item and is a commercial enterprise.

2. "STUDY"—Contains a link to the Founders Journal, which is a commercial enterprise.

3. "SHOP"—The mere appearance of the word "Shop" in the main menu of every page on the site disabuses us of any notion that this is a non-commercial web site, does it not? This link goes to Founders Press, which sells books.

4. "PARTICIPATE"—Invites people to become donors supporting Founders. As I said, Founders sells itself. This is a commercial enterprise.

5. "SUBSCRIBE"—The first subscription listed is the paid subscription to the Founders Journal.

6. "SEARCH"—This item, the last one on the menu, is admittedly non-commercial.

So, 5/6 of the very first line on the page—the main menu of the site—are links designed to generate sales or donations for Founders.

Again, THERE'S ABSOLUTELY NOTHING WRONG WITH THAT. But, when Founders begins to use southernbaptistconvention.org to do so, then it becomes unethical. It also means that Founders does not have a noncommercial or fair use claim to rights for the domain name. It further means that Founders use of southernbaptistconvention.org is in bad faith.

Thus, Founders use of the website is cybersquatting.
Q.E.D.

Jeff said...

Is this like writing a review of book which you have not read? Wade care to comment on that one?

Bill said...

This is unfortunate. I think Bart's points are convincing and that use of the domain name gives at least the appearance of unethical behavior. It should be rectified. Additionally unfortunate is that this incident will (and already has) further encourage tilting at the Founders windmill (not at this site).

Doug Hibbard said...

We had business meeting. So, we taught how to handle God's business with peace and harmony.

Bart Barber said...

That's a good thing to learn, Doug!

Bill said...

One more point. We have not heard from Founders on this issue, so we should at least keep part of our minds open to hearing their explanation if they choose to give one.

Bart Barber said...

A point well taken, Bill.

Joe White... said...

Last night at TSBC we considered the promised return of Christ in John 14 and Acts 1, William Miller, and the new Harold Camping May 21, 2011 "Judgment Day / Rapture" date. Good times!

corbaley.blogspot.com said...

Hey Everyone,

This is not to "hi" jack the comment stream, but it might be a "low" jack ; )

Apparently, Jerry Rankin's blog, rankinconnecting.com now goes elsewhere.

Bart Barber said...

Somebody asked me offline how the SBC would go about retrieving its rights to the domain name. I doubt that will be necessary, since the folks over a Founders are reasonable people and I think that they will resolve this honorably on their own.

But to answer the hypothetical, the ICANN documents that we've referenced provide the procedure, and this would be a slam-dunk case for any of the resolution boards. All a person would have to do is go to the microphone in Phoenix and move that the messengers "instruct the Executive Committee to file a UDRP complaint to assert the convention's rights to the domain name southernbaptistconvention.org." It would cost the SBC about $1000.

Bart Barber said...

I hasten to add, I don't think that this is something that we should do. It looks suspiciously like Christians suing one another in secular courts. Of course, this would be an arbitration panel rather than a court—not precisely the same thing. But I think it is close enough that one could not confidently know that he was not in violation of 1 Corinthians 6.

D.R. said...

Bart,

I don't have time just now to respond to you, but I do want to say that this is FAR, FAR from a "slam dunk case". Just looking at the cases which have been decided by the process you can see that there is nothing even close to this sort of situation that has been previously decided. When I have the time, I will highlight some of these cases and a couple that I think show that Founder's has done nothing that would result in their forfeiture of the domain name.

Bart Barber said...

I hope that it never comes to that. Such would greatly increase the antagonism between Calvinistic Southern Baptists and other Southern Baptists.

Anonymous said...

Hmmm...maybe the Founders' crew could debate Ergun Caner about what the standard for ethical behavior among professing Baptists should be...

TRB

Anonymous said...

g'day Bart,
Probably someone at Founders hsoud just admit they've got egg on their face and hand it over pronto... dumb joke of theirs.. It backfired real bad!
Steve

Doug Hibbard said...

I see your point about the potential for misleading folks, but what I have yet to see is that the Executive Committee even wants the domain name or that Founders is holding it away from the SBC.

It's apparently not one they've pursued, given the animosity between previous leadership there and Calvinism in general, it would have been a big deal.

It's only now an issue because someone told Peter Lumpkins to check it out, Peter blogged about it, then you read the blog, and blogged about it.

Then some others read your blog and checked out the link.

Really, are we going to make this into a massive case of fraud when no one has apparently cared until this week?

Doug

Bart Barber said...

Doug,

I agree that it is not that big of a deal, in some sense. Here, as I see it, is the progression of my role in this thread:

BART: This is cybersquatting and is unethical, but it is a simple mistake made by good people who will doubtless correct it.

OTHERS: This is not cybersquatting, or if it is, it is not unethical.

BART: Yes, it is cybersquatting. Yes, it is unethical. Here's the definition and the evidence and the way that it applies to this case.

...so...

After spending all of this time to put out all of the evidence and show why I've said what I've said, it LOOKS LIKE I'm making a big enormous deal out of this. Really, I'm just answering questions and participating in the dialogue, and the more we dialogue the more of a big conversation it makes out of the whole thing.

But I'm still of the opinion that this is a relatively small thing.

Bart Barber said...

Doug,

The integrity of a Christian organization is a big deal, however. Let's play this out in this way.

The folks around here at FBCF know that they'd better not let me catch them Xeroxing copyrighted materials without permission. Yes, the illegal duplication of copyrighted sheet music for a choir rehearsal is a small thing, relatively speaking. If we were stealing Social Security money from Grandma, we'd be on the 6:00 news tonight, but nobody's going to report on Someplace Baptist Church's illegal copying of a few pages of "I Can Only Imagine."

Nevertheless, holiness and integrity are important. People make mistakes. Often they make them inadvertently. In 2001, I don't even know that we were all confident about what the ethical rules of the Internet were. This is not that big of a deal in some sense.

And yet, an organization's commitment to integrity, or lack thereof, is important. That foundational concept of integrity, if ignored on the small things, tends to migrate into larger things. I've seen that happen to friends. I've worried about it happening to me.

But, with all of that having been said, I agree that this is one of the less weighty things I've ever blogged about. Compared to the mutilation of the gospel that takes place in something like The Camel or some of the other topics that I've tackled here, this one is relatively unimportant.

Daniel W. said...

The domain in question has been redirecting to founders.org for at least nine years. The SBC has owned sbc.net since 1998. That means the SBC chose sbc.net at least 5 years before the Founders chose the domain in question.

Furthermore, it wasn't a secret. Any person in the entire world with internet access could have accessed it at any point in the last 9 years.

Why is this an issue only now? Because an anti-Calvinist blogger mentioned it?

sbc.com redirects to AT&T. Are they cybersquatting, too? Or is the SBC cybersquatting AT&T?

Bart Barber said...

Daniel W.,

The SBC's choice of primary domain name is not relevant. It is entirely likely that the SBC can hold two preferences at the same time:

1. That the shorter sbc.net be the primary domain name of the SBC.

2. The nobody else fraudulently reserve other domain names that clearly refer to the SBC in order to deceive the public into inadvertently and unwillingly coming onto another site belonging to another group.

Also, the length of time that this went unnoticed is irrelevant. Sin can remain secret for a long time. Sin can become entrenched habit. Sin is still sin, even if all of that is true.

As to sbc.com, I guess it was just a matter of time before our reasonable conversation about this subject would be interrupted by foolishness. Read the UDRP, which covers this situation very well. SBC could refer to the Southern Baptist Convention, or it could refer to Southwestern Bell Corporation. It belonged to Southwestern Bell Corporation, who had a legitimate claim to the domain name. SBC was merged into AT&T. AT&T has a just and legal claim under UDRP to the domain name sbc.com.

Founders, on the other hand, has no legitimate claim to the domain southernbaptistconvention.org. What nobody has offered at all up to this point—what nobody could possibly offer because it is nonexistent—is any good and ethical reason why it would be a good thing for Founders to have the domain name southernbaptistconvention.org.

Instead, we have the self-justification of unethical behavior and the rationalization away of wrong actions. That should make for a lengthy and energetic comment stream, because we human beings are uniquely gifted for that enterprise and highly experienced.

Bart Barber said...

Again, it is irrelevant whether the Southern Baptist Convention has any intention of ever using this domain name. The SBC has the right under UDRP to prevent other people from using domain names that fraudulently cause confusion regarding their trademark.

A couple of examples:

1. Our church uses fbcfarmersville.com as our domain name. We do not control fbcfarmersville.org. We do not intend to purchase fbcfarmersville.org. We simply don't want to spend the money to keep in registration every domain name that might refer to us.

I imagine that Tom Ascol's church is in the same situation. Whatever domain names that they have registered, I'm sure that there's another domain name that I can imagine that would clearly refer to that church, but that they haven't registered.

Now, suppose that Tom had a member of his church who was a Presbyterian and had never received New Testament baptism. Suppose that member went out and reserved the domain name gracebaptistchurchcapecoral.org (which is available). Further suppose that said member then published a web site at that address that advocated the forcible sprinkling of infants without their consent, all at the domain name gracebaptistchurchcapecoral.org.

Has Grace Baptist Cape Coral ever attempted to register that domain name? No. Do they really want to operate with that domain name? No. Does that mean that they have no interest in preventing SOMEBODY ELSE from hijacking a domain name that clearly does not pertain to the other party but over which Grace Baptist Cape Coral clearly has rights?

Of course not.

Second example: I have never registered the domain name pastorcbartbarber.com. I have no intention of registering the domain name pastorcbartbarber.com. Nevertheless, I would have a preference regarding whether an individual selling anointed prayer cloths should be using a domain name that clearly pertains to me and clearly does not pertain to that other person in order to sell their commercial wares (even if they were a non-profit corporation).

I do not want to use that domain name, but I also do not want anybody else to use that domain name in order to trade for themselves on my name.

And it is for this reason that the UDRP protects precisely that right on my behalf, identifying such a practice as cybersquatting and characterizing it as precisely what it is—unethcial.

Bart Barber said...

A simpler way to explain it occurs to me:

The design of the UDRP is not to protect domain names. The design of the UDRP is to protect trademarks and names under which people and organizations exist and conduct business.

What has been infringed upon here is not, in and of itself, the domain name southernbaptistconvention.org. What has been compromised and infringed upon by the unethical use of the domain name southernbaptistconvention.org is the name Southern Baptist Convention.

Bart Barber said...

I'm still waiting, by the way, for somebody to give a reason why Founders would want to use the name southernbaptistconvention.org that does not involve misdirecting people who were really looking for the Southern Baptist Convention.

Daniel W. said...

Thank you for your reply. I am a SBC Calvinist in agreement with Founders. In light of a better understanding of the UDRP, I agree with you. I believe Tom Ascol should unregister the domain when he returns from Haiti.

Bart Barber said...

Thanks, Daniel. That's all I'm saying. May God bless your ministry as an SBC Calvinist (and mine as a Southern Baptist of a different sort).

Anonymous said...

"Why is this an issue only now? Because an anti-Calvinist blogger mentioned it?"

Not to get into an extended exchange about this on your thread, Bart, I want to correct the statement above.

For the record, since I started blogging in 2006, I've never attempted in any way, so far as I am aware, to hide my unsettled impressions concerning Founders and Founders' vision. Hence, were someone to state "PL is anti-Founders," no denial would come from West Georgia. Without reservation, I concede. I am.

On the other hand, to characterize me as "anti-Calvinist" is simply unfair and cannot be demonstrated by the pieces I pen. I've never once suggested--nor do I intend to--that Calvinists are unwelcome and/or have no right to be Calvinist in the SBC. Only an historical buffoon could or would deny Calvinism's long, rich history within the Baptist movement generally and Southern Baptists particularly.

Hence, the commenter is mistaken. While I am anti-Founders & Founders' vision to be sure, I am definitively not anti-Calvinist.

With that, I am...
Peter

D.R. said...

Bart,

I have to say that I wrote a rather lengthy response, but I realize that one is more likely to get lost in the details of the post than actually be able to follow the argument. So, instead I just want to ask two short follow up questions and go from there to make this as simple as possible.

Is what you are saying above regarding the UDRP criteria for using the domain name that criteria "iii." disallows any commercial usage of the registered domain name?

And then based on that commercial usage, which you've established by noting the donation, store, and journal tabs, you claim that Founder's is acting in bad faith?

Is that your argument in a nutshell?

Daniel W. said...

There's no need for an extended dialogue. I'm not surprised Peter Lumpkins wants to argue with a Calvinist over semantics.

I don't know how Peter Lumpkins defines "anti-Calvinist" or any of the other terms he frequently uses in relation to Calvinism. While I don't think an anti-Calvinist is necessarily one who denies the historical validity of Calvinist Baptists, I nevertheless concede that Peter Lumpkins is not an anti-Calvinist, however he may choose to define it. My moot point is no less moot.

"Why is this an issue only now? Because an anti-Founders blogger mentioned it?"

As Peter said in the comments on his blog, Dr. Barber's argument was "convincing." I agree. It convinced me! Peter Lumpkins' arguments, on the other hand, are spiteful, i.e. "double West Georgia hoot" and "questionable ploys to draw people into their circle of influence."

The issue is whether Founders' actions are legal and ethical, not hilarious and persuasive. Thank you Dr. Barber for addressing this issue in a serious and Biblical manner.

Bart Barber said...

D.R.,

I'm saying that Founders' commercial use of a domain name that clearly pertains to the SBC does not qualify as a noncommercial or "fair use" registration of the domain name under the UDRP.

Bart Barber said...

D.R.,

In the Steinway case, the panel found that the reseller of Steinway products did in fact have rights with regard to the Steinway trademark. We have already agreed that Founders has no such rights with regard to the name Southern Baptist Convention.

In the Bill Clinton case, the panel explicitly mentioned that the offending sites were non-commercial. The respondent refuted the suggestion of bad faith by asserting (in necessary part) "he has not registered the domain name… in order to attract Internet users for commercial gain." And yet Founders does attract users to its site for commercial gain.

So, neither example really corresponds with Founders' use on the facts.

But let us go a bit further here anyway. Is it ethical, what these folks did to Bill Clinton? Ought Christian ministries to engage in similar activities as this? May God forbid that I should ever be seeking to justify the actions of our church by appeal to something as clearly unethical and low as what these web sites were doing with President Clinton's name!

Let me also mention something else here: I believe that the UDRP defines cybersquatting, but that doesn't mean that you won't be able to find a panel ruling somewhere with which I do not agree. This is not inconsistent on my part: I believe that the Constitution of the United States defines the law of this land, but I do not agree with the United States Supreme Court's application of that document in the Roe v. Wade decision. For me to say so is not to disagree with whether the Constitution is the definitive document in this matter; it is to point out that the court charged with applying the Constitution failed in its job.

That may be an unnecessary point to make, but I make it nonetheless.

Finally, I think a much closer case is that of The Orange Bowl Committee, Inc. v. Front and Center Tickets, Inc. There the WIPO found that Front and Center Tickets was using the domain orangebowltickets.com in bad faith because the use was commercial and did not constitute "fair use" because (substantially) the site did not only offer Orange Bowl tickets for sale but also "because the domain name is used to sell products that it does not describe."

If the Founders were to have a web site at which southernbaptistconvention.org landed and which did nothing more than to give people information about the Southern Baptist Convention, linking them to the real SBC site and providing links to the BF&M, a statement of the gospel, Lifeway, the seminaries, etc., then that would constitute "fair use."

But instead, Founders is using southernbaptistconvention.org to sell people journals, books, and memberships which are not offered by the Southern Baptist Convention and do not uniquely pertain to it. Founders actions are very similar to those of Front and Center Tickets.

Bart Barber said...

D.R.,

In the Steinway case, the panel found that the reseller of Steinway products did in fact have rights with regard to the Steinway trademark. We have already agreed that Founders has no such rights with regard to the name Southern Baptist Convention.

In the Bill Clinton case, the panel explicitly mentioned that the offending sites were non-commercial. The respondent refuted the suggestion of bad faith by asserting (in necessary part) "he has not registered the domain name… in order to attract Internet users for commercial gain." And yet Founders does attract users to its site for commercial gain.

So, neither example really corresponds with Founders' use on the facts.

But let us go a bit further here anyway. Is it ethical, what these folks did to Bill Clinton? Ought Christian ministries to engage in similar activities as this? May God forbid that I should ever be seeking to justify the actions of our church by appeal to something as clearly unethical and low as what these web sites were doing with President Clinton's name!

Let me also mention something else here: I believe that the UDRP defines cybersquatting, but that doesn't mean that you won't be able to find a panel ruling somewhere with which I do not agree. This is not inconsistent on my part: I believe that the Constitution of the United States defines the law of this land, but I do not agree with the United States Supreme Court's application of that document in the Roe v. Wade decision. For me to say so is not to disagree with whether the Constitution is the definitive document in this matter; it is to point out that the court charged with applying the Constitution failed in its job.

That may be an unnecessary point to make, but I make it nonetheless.

--continued--

Bart Barber said...

Finally, I think a much closer case is that of The Orange Bowl Committee, Inc. v. Front and Center Tickets, Inc. There the WIPO found that Front and Center Tickets was using the domain orangebowltickets.com in bad faith because the use was commercial and did not constitute "fair use" because (substantially) the site did not only offer Orange Bowl tickets for sale but also "because the domain name is used to sell products that it does not describe."

If the Founders were to have a web site at which southernbaptistconvention.org landed and which did nothing more than to give people information about the Southern Baptist Convention, linking them to the real SBC site and providing links to the BF&M, a statement of the gospel, Lifeway, the seminaries, etc., then that would constitute "fair use."

But instead, Founders is using southernbaptistconvention.org to sell people journals, books, and memberships which are not offered by the Southern Baptist Convention and do not uniquely pertain to it. Founders actions are very similar to those of Front and Center Tickets.

D.R. said...

Bart,

I still don't see my comment to which you responded, so I reposted it. It still might not show up.

But let me deal with your response now to these issue. First, if the UDRP didn't see the RNC's usage of the Bill Clinton domain names as commercial, then how could it not rule the same thing regarding Founder's?

Look at the RNC site that is directed from www.williamjclinton.com. It has the exact same type of website as you described of the Founder's. It has a place to donate and an attached store where GOP and RNC products are sold.

What then is the difference? How is the RNC non-commercial, but Founder's commercial?


As for the Steinway case, here is what I found stated about the case on www.cybersquatting.com:

While the cybersquatting panel found that Steinway had a federal trademark registration for the STEINWAY way, the panel also found that the registrant of the domain name had been in the business of buying, restoring, and selling Steinway pianos for several years, and had used the domain name in its nominative sense. Therefore the panel found that the registrant had rights in the STEINWAY mark and did not use the domain name in bad faith. Thus, the panel denied Steinway's claim.

The panel did not find that the registrant had rights to the name "Steinway" but rather they had rights "in the Steinway mark". Those are 2 completely different things. The URDP panel did not conclude that they had a right to call themselves Steinway, but rather that they had a right to use the name Steinway. I agree that Founder's doesn't have the right to call themselves the SBC, but they do have a right to use the name SBC. And that is what is at issue here.

As for the case of Orange Bowl tickets, there are two huge differences. First, the panel noted that the Respondent had shown a pattern of such behavior (a huge issue to the UDRP) in which they had been Respondents in 2 other cases. Secondly, the panel concluded that the Respondent had no legitimate interest in the use of ORANGE BOWL.

Here is their conclusion:

...we conclude that Respondent's use of Complainant's ORANGE BOWL mark in a domain name used in connection with the resale of tickets not only to the ORANGE BOWL game but also for tickets to a variety of unrelated and competing events is not fair use under the Policy. We further conclude, therefore, that Respondent lacks any right or legitimate interest in the use of ORANGE BOWL in its domain name and find in Complainant's favor on Paragraph 4(a)(ii) of the Policy.

Notice the emphasis on offers for competing events (not so with Founder's - they are not attempting to compete with the SBC), and the comment that they had no legitimate interest. Founder's has legitimate interest because they are a ministry made up of SBC member Churches. As you said similarly regarding yourself, Bart, "[they are] the SBC."

D.R. said...

Bart,

I still don't see my comment to which you responded, so I reposted it. It still might not show up.

But let me deal with your response now to these issue. First, if the UDRP didn't see the RNC's usage of the Bill Clinton domain names as commercial, then how could it not rule the same thing regarding Founder's?

Look at the RNC site that is directed from www.williamjclinton.com. It has the exact same type of website as you described of the Founder's. It has a place to donate and an attached store where GOP and RNC products are sold.

What then is the difference? How is the RNC non-commercial, but Founder's commercial?


As for the Steinway case, here is what I found stated about the case on www.cybersquatting.com:

While the cybersquatting panel found that Steinway had a federal trademark registration for the STEINWAY way, the panel also found that the registrant of the domain name had been in the business of buying, restoring, and selling Steinway pianos for several years, and had used the domain name in its nominative sense. Therefore the panel found that the registrant had rights in the STEINWAY mark and did not use the domain name in bad faith. Thus, the panel denied Steinway's claim.

The panel did not find that the registrant had rights to the name "Steinway" but rather they had rights "in the Steinway mark". Those are 2 completely different things. The URDP panel did not conclude that they had a right to call themselves Steinway, but rather that they had a right to use the name Steinway. I agree that Founder's doesn't have the right to call themselves the SBC, but they do have a right to use the name SBC. And that is what is at issue here.

D.R. said...

(continued from above)...


As for the case of Orange Bowl tickets, there are two huge differences. First, the panel noted that the Respondent had shown a pattern of such behavior (a huge issue to the UDRP) in which they had been Respondents in 2 other cases. Secondly, the panel concluded that the Respondent had no legitimate interest in the use of ORANGE BOWL.

Here is their conclusion:

...we conclude that Respondent's use of Complainant's ORANGE BOWL mark in a domain name used in connection with the resale of tickets not only to the ORANGE BOWL game but also for tickets to a variety of unrelated and competing events is not fair use under the Policy. We further conclude, therefore, that Respondent lacks any right or legitimate interest in the use of ORANGE BOWL in its domain name and find in Complainant's favor on Paragraph 4(a)(ii) of the Policy.

Notice the emphasis on offers for competing events (not so with Founder's - they are not attempting to compete with the SBC), and the comment that they had no legitimate interest. Founder's has legitimate interest because they are a ministry made up of SBC member Churches. As you said similarly regarding yourself, Bart, "[they are] the SBC."

Bart Barber said...

I suppose that we are left in a position of speculative disagreement, unless and until this matter actually comes before WIPO or some other resolution agency.

Bart Barber said...

We ought, nevertheless, to be able to agree that Christian ministries ought not to be engaging in the most disreputable things that ticket scalpers and political 527 organizations do.

D.R. said...

Bart,

I will say this:

The fact that we need organizations like the UDRP and ICANN to decide whether there are issues of trademark infringement and the fact that these organizations offer opinions that are so diverse and at times seemingly contradictory shows us that any time we confront an issue like the one spoken of here, we need to remember that making clear pronouncements of what is or isn't wrong is really more often a matter of opinion and perspective than a matter of right and wrong.

I for one hope the Founder's doesn't give up the domain name. I don't think they've done anything demonstrably unethical. They acted in a clever manner 10 years ago to snap up a domain name the SBC passed up on. And I think one would be hard-pressed to show how Founder's has in the past 10 years usurped the influence of the SBC through this one domain name.

I understand people don't like it, but that doesn't mean it's wrong. I don't like a lot of Peter Lumpkin's vision for the SBC, but I don't think he violated an ethical standard by naming his site SBC Tomorrow (the same would be true with SBC Voices, SBC Today, or SBC Impact).

Bart Barber said...

I will in turn say this:

That which takes the simple and makes it complicated is usually a form of deceit. This matter is quite simple: Founders is not the Southern Baptist Convention, although the domain name purports that they are.

D.R. said...

So Bart, then tell me where on the Founder's site, once you arrive there, do you find evidence that they are trying to say they are the SBC?

Where on their site have they intentionally tried to mislead people that they are in fact the SBC and not a ministry of SBC Churches to other SBC Churches?

Because UDRP policy is not just about the actual URL, but rather what the site attempts to communicate. Not one case was decided solely on the basis of one possessing the URL. Rather it is about what one claims on their site.

So as I said before, which you seemed to ignore, the UDRP policies clearly state that deception must take place within one of 4 areas - source, sponsorship, affiliation, or endorsement. Not once have you tried to make the case that they Founder's tried to deceive in regard to one of those 4 areas.

Again, you might not like it, but you can only definitively claim a breach of ethics if intent to defraud is clear. Even you haven't said that.

Bart Barber said...

D.R.,

You are conflating two questions:

1. Is it cybersquatting?
2. Is it unethical?

I maintain the affirmative on both questions, and yet I can see that they are not the selfsame question. The action of Founders is indeed cybersquatting, and I dispute whether Founders is in competition with the SBC, at least in the sense the Front and Center Tickets was. Front and Center was not entirely in competition with the Orange Bowl. In some ways, they were in cooperation. Front and Center was only partially in competition with the Orange Bowl. So, if any content at all on the Founders website is in advocacy of parachurch or denominational movements other than the Southern Baptist Convention, then Founders is just as much in competition against the SBC as Front and Center Tickets was against the Orange Bowl.

But there is a second question. It is not unrelated, but neither is it identical. Is it unethical? Yes, it is unethical. You correctly note that the content of the site, and not the url alone, must be evaluated in order to determine whether a domain name is an instance of cybersquatting. But I submit to you that a domain name in and of itself can be unethically deceitful.

I will come back again to the thing that nobody has has been willing to address: What reason does Founders have to use this domain name other than to catch people trying to get to the SBC and to bring them to the Founders site instead? Every imaginable answer involves Founders catching unaware Internet browsers who wished to find the SBC and misdirecting them to the Founders site instead.

That's unethical, whether it is cybersquatting or not (which it is).

Bart Barber said...

D.R.,

Look, I sense the productivity of this thread to be dropping. I'm sympathetic to your position—Loyalty and allegiance is a difficult thing to overcome. And they're admirable traits, the both of them.

I promise you—I do not pose a threat to Founders. I'm content to let the whole thing go. You wrap up in any way that you wish. Draw your argument to a conclusion with full flourish. Then why don't we just leave it at that?

D.R. said...

Bart,

I agree that this thread is getting old and I appreciate one last chance to make my case, but I also acknowledge that this is your blog and I have probably said enough already in regard to the case itself.

The only thing I want to reiterate is my original problem with your post, which is that you made a definitive pronouncement that Founder's was cybersquatting and, as such, was acting unethically.

The one thing I hope people see is that this is certainly not "pure and simple" cybersquatting. Such does not exist, which is why the UDRP has a process. I think you have pronounced a guilty sentence when in fact there is good reason to think that the UDRP might very well rule in Founder's favor.

As such you have made something that is at best gray into something black and white. And for a Christian speaking of a Christian organization, I simply think you should give them more of a benefit of the doubt.

Additionally, I think this sort of thing only adds fuel to the fire of ignorant people who long to see Calvinism rid from the SBC and gives others who are on a crusade against Calvinism more red herrings with which to attack.

What irks me is seeing dozens of Reformed Baptist pastors fired every year over ignorance and innuendo and yet what people are more interested in is whether Founder's is getting a few more people to their site using a url the SBC never wanted.

So again I appreciate your latest post, but I would really like to see you back off your definitive pronouncement and honestly see that you've mistaken your opinion and viewpoint with absolute truth.

Thanks,

D.R.

Anonymous said...

Bart,
Thanks for staying consistent throughout this thread. I appreciate your writing and your stand. <><

Doug Hibbard said...

If we change the name, should Tom Ascol get the website back?