CLE event to explore uses of music in political campaigns

Next Wednesday, Nov. 17 I'll be participating in a CLE event that will explore various legal issues related to the use of music in political campaigns. Anyone can participate (for a fee) via telephone conference or live webcast hosted by the ABA. Details below:

The Politics of Fair Use: A Practical Discussion of Fair Use Principles Using Recent Examples of Popular Music in Political Campaigns Date: Wednesday, November 17, 2010 Format: Teleconference and Live Audio Webcast Duration: 60 minutes

Sponsors:

The American Bar Association Section of Intellectual Property Law, Forum on the Entertainment and Sports Industries and the ABA Center for Continuing Legal Education

12:30 PM-1:30 PM Eastern	11:30 AM-12:30 PM Central
10:30 AM-11:30 AM Mountain	9:30 AM-10:30 AM Pacific

Program Description

Recently, high profile politicians including John McCain, Charlie Crist, and Chuck DeVore have had lawsuits brought against them for using the music of famous musicians such as Jackson Browne, David Byrne, and Don Henley in their campaigns without receiving the necessary permissions and licenses. What rights do politicians have to use popular music at their live events and in advertisements? Are such uses a "fair use"? Our expert panel will discuss these issues and use them as a means to review principles of the Fair Use doctrine.

Program Faculty

Robert Clarida (Moderator) is the partner in charge of the copyright practice at the New York firm of Cowan, Liebowitz & Latman, P.C., which was named “Copyright Firm of the Year” for both 2008 and 2009 by Managing Intellectual Property magazine. He has conducted jury trials, argued federal appeals, and served as lead litigation counsel in a number of reported federal copyright cases. He also counsels clients on non-litigious copyright matters, and has been the principal drafter of amicus curiae briefs on copyright matters in the U.S. Supreme Court and a number of Circuits, on behalf of organizations including the AIPLA, the Motion Picture Association of America, the New York City Bar Association, and the Recording Industry Association of America. Mr. Clarida speaks and writes frequently on copyright issues, is the author of the treatise Copyright Law Deskbook (BNA 2009), and the principal author of the annual review of copyright decisions published each year by the Journal of the Copyright Society of the USA.

Jacqueline C. Charlesworth is of counsel in the litigation department in the New York office of Morrison & Foerster LLP. Ms. Charlesworth's practice focuses on copyright law in the digital environment. She represents media, entertainment, and other clients in litigation, legislative, regulatory, and transactional matters. In addition to handling infringement matters, she has negotiated industry-wide licensing agreements to facilitate the development of online music services. She advises on copyright-related legislation and appears in proceedings before the
U.S. Copyright Office.

Ben Sheffner is a copyright/First Amendment/media/entertainment attorney and former journalist. Currently senior counsel, Legal Affairs in the NBC Universal Television Group, Mr. Sheffner has also worked as senior counsel, Content Protection Litigation at Twentieth Century Fox, as litigation counsel in the NBC Universal Television Group, and as an associate in the Century City office of O'Melveny & Myers LLP. From July-November 2008, Mr. Sheffner served as special counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other intellectual property issues. Mr. Sheffner blogs at http://copyrightsandcampaigns.blogspot.com/, which was recently named as one of the top 100 legal blogs by the American Bar Association, and writes a regular column on legal issues in the music industry for the Billboard.

Andrew Sparkler is the associate director, Legal Corporate at the American Society of Composers Authors and Publishers ("ASCAP") where he focuses on legislative and international issues, as well as providing legal support to ASCAP's internal departments and The ASCAP Foundation. He is a co-chair of the New York Chapter of the Copyright Society of the U.S.A. In 2009, he was named the New York State Bar Association's "Outstanding Young Lawyer." Mr. Sparkler received his law degree from the Fordham University School of Law and his undergraduate degree from Brown University.

CLE Credit

1.0 hours of CLE credit in 60-minute states/1.2 hours of CLE credit in 50-minute states have been requested in states accrediting ABA teleconferences and live audio webcasts.*

NY-licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for1.0 total NY CLE credits.

The following states accept ABA teleconferences for CLE credit:
AL, AK, AR, AZ, CA, CO, FL, GA, IA, ID, IL, KY, LA, ME, MN, MO, MS, MT, NC, ND, NH, NM, NV, NY, OK, OR, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV, WY.

*States currently not accrediting ABA teleconferences: DE, IN, PA, KS, OH

Click here to view a map of MCLE states

Nevada Senate candidate objects to opponent's posting of earlier version of web site

Talking Points Memo reports on a campaign IP kerfuffle in Nevada, where Senate Majority Leader Harry Reid (D) is fending off a challenge from Sharron Angle (R). The Reid campaign apparently posted a cached copy of an earlier version of Angle's web site, in an effort to show that she had "toned down her right-wing rhetoric" in the current version. A cease-and-desist letter from the Angle campaign's attorney followed.

The TPM story suggests that the Angle campaign was simply complaining about Reid's use of its copyrighted material. If that were so, I would think the copyright claim would be weak; the fair use and First Amendment arguments in favor of allowing a political candidate to post his opponents' campaign material in order to comment on it would be strong. See, e.g., Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978) (rejecting copyright claim in campaign context; emphasizing that "The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.").

But it's clear from the C&D letter that the Angle campaign is not actually making a copyright claim. Rather, they are concerned that the Reid campaign, by posting the former Angle web site, which included a form for supporters to submit their names and email addresses, may have been harvesting those on their own, and misleading Angle supporters who genuinely wanted to submit their names to her campaign -- not Reid's. Indeed, the actual demand in the C&D letter is confined to this point:

[W]e demand that the Reid campaign immediately cease its nefarious actions of requesting and obtaining the names, email addresses, and zip codes under false pretenses from unsuspecting supporters of his opponent, Sharron Angle.

According to TPM, the Reid campaign acquiesced and took down the site. It's one thing to post an opponent's words to comment on or criticize them; I would support the Reid campaign's right to do just that. But it's quite another to trick supporters of one candidate into giving their contact info to the other, and it appears Angle had every right to complain about that aspect of Reid's tactics.

Update: Several people have pointed out to me that the C&D letter includes some broad language about the Reid campaign's use of copyrighted material. That's true, but I think that in context, what Angle is really complaining about is the use of that copyrighted material to mislead her supporters into submitting their contact info to the wrong site.

Tentative ruling favors Henley over DeVore on copyright claims, rejecting 'parody' argument

According to a report on KTTV's web site, federal judge James Selna has tentatively ruled for Don Henley over Senate candidate Chuck DeVore (R) on his copyright claims, rejecting DeVore's arguments that his campaign videos that took Henley's "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama were fair use "parodies." Update: Here's the tentative ruling. According to the Fox station's report:

Selna [tentatively] ruled that DeVore's case for fair use is stronger for "The Hope of November" because he uses Henley's song to parody what he contends is Henley's support for liberal causes, but it fails because it primarily focuses on criticizing Obama.

The judge said DeVore's case is much weaker for "All She Wants to Do Is Tax," because the lyrics have nothing to do with Henley. Selna said it more closely resembles satire, as opposed to parody, and the standard for using such material without paying for it is higher for satire than it is for parody.

***

DeVore attorney Chris Arledge argued that the judge's ruling, if it stands, would send a chilling effect on free speech by politicians because it would make all political speech "commercial speech."

While the tentative went for Henley on his copyright claim, KTTV's report says Selna sided with DeVore on Henley's Lanham Act claim, which was premised on the allegation that the use of his songs falsely implied that the liberal singer had endorsed the conservative Republican's campaign. (Didn't someone predict exactly this result?)

Again, keep in mind that Judge Selna's ruling is tentative, and he is free to change his mind before issuing a final ruling.
Tentative Summary Judgment Ruling in Henley v. DeVore

Henley, DeVore file reply briefs in 'parody' battle

Don Henley and Chuck DeVore have filed their respective summary judgment reply briefs in the copyright and Lanham Act suit over DeVore's campaign videos that took Henley's "The Boys of Summer" and "All She Wants to do is Dance" and substituted new lyrics attacking Sen. Barbara Boxer (D-CA) and President Obama. Here's Henley's brief and DeVore's. Again, the focus in the briefs is whether, under Campbell v. Acuff-Rose, the videos are fair use parodies that target the songs themselves, or infringing satires that merely use the works to comment on something else. As I've said before, I think DeVore faces a steep uphill battle to prevail on this point, given the facts and the existing law, but he has a much stronger argument on Henley's Lanham Act claim.

Kudos to both sides for what I thought were very well-argued briefs. The hearing on the cross motions for summary judgment is set before Judge James Selna in Santa Ana June 1 in this case that will help set the rules of the road for campaign uses of third-party material.

N.D. Cal.: BMW v. Gore does not apply to awards of statutory damages in copyright and trademark cases

A federal court in the Northern District of California has squarely rejected the argument that awards of copyright statutory damages are subject to the constitutional limits on punitive damages set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). Ruling on the defedant's post-trial motions following the jury verdict in Luis Vuitton v. Akanoc, Judge James Ware explicitly held that the Gore analysis of the ratio between actual damages and punitive damages is inapplicable in the context of copyright (and trademark) statutory damages. See order at 22-25 & n.25. The ruling could help the record label plaintiffs in the Jammie Thomas-Rasset and Joel Tenenbaum cases, should the courts ever reach the constitutional challenges to the jury verdicts. In the Thomas-Rasset case, the court remitted the jury's award of $1.92 million on common-law (not constitutional) grounds, and a similar challenge to the $675,000 verdict in the Tenenbaum case is pending.
Akanoc Order re Injunction and New Trial

This case involved Akanoc, a US web host that provided services to Chinese web stores, some of whom sold counterfeit LV products. Last September, a jury awarded LV $32.4 million for contributory trademark and copyright infringement, finding that Akanoc did not qualify for the DMCA safe harbor because it often ignored LV's takedown notice, and did not even register a DMCA agent until well after this case was filed.

(h/t Eric Goldman)

Is the Massachusetts Democratic Party infringing UPS' trademark with anti-Brown pamphlet?

From a Massachusetts Democratic Party pamphlet attacking GOP Senate hopeful Scott Brown:


The Boston Herald reports that UPS sent the party an email "ask[ing] that no further copies be distributed" but has not received a response.

Jackson Browne settles suit with McCain, RNC, and Ohio Republican Party over use of song in web video

The lawsuit brought by Jackson Browne against John McCain, the Republican National Committee, and the Ohio Republican Party over the use of Brown's song "Running on Empty" in an ORP web video during last year's presidential campaign has been settled. Today the parties issued the following press release:

SINGER/SONGWRITER JACKSON BROWNE RESOLVES LAWSUIT AGAINST THE OHIO REPUBLICAN PARTY, THE REPUBLICAN NATIONAL COMMITTEE AND SENATOR JOHN McCAIN

Singer/songwriter Jackson Browne has resolved his lawsuit against the Ohio Republican Party (“ORP”), the Republican National Committee (“RNC”) and Senator John McCain. The lawsuit arose from a web campaign video produced by the ORP in support of Senator McCain's campaign for President of the United States which incorporated portions of the song Running On Empty, a song written and recorded by Mr. Browne. The lawsuit, filed in August, 2008 in the United States District Court in Los Angeles, alleged that this use of Mr. Browne's song required a license which was not obtained, and that the defendants were liable for copyright infringement, false endorsement under the United States Lanham Act and violation of Mr. Browne’s right of publicity for the use of his voice.

The financial terms of the settlement are confidential.

The ORP, RNC and Senator McCain issued the following statement: "We apologize that a portion of the Jackson Browne song ‘Running On Empty’ was used without permission. Although Senator McCain had no knowledge of, or involvement in, the creation or distribution of the web campaign video, Senator McCain does not support or condone any actions taken by anyone involved in his 2008 presidential election campaign that were inconsistent with artists’ rights or the various legal protections afforded to intellectual property. The ORP, RNC and Senator McCain pledge in future election campaigns to respect and uphold the rights of artists and to obtain permissions and/or licenses for copyrighted works where appropriate."

Disclosure: I worked on Senator McCain's defense of this lawsuit. I have not enabled comments for this post because I will not be able to respond, given my confidentiality obligations.

Setback for DeVore as court refuses to dismiss Lanham Act and 17200 claims in Don Henley's suit over 'parody' campaign videos

A federal judge has refused to dismiss singer Don Henley's claims that California GOP Senate candidate Chuck DeVore violated the Lanham Act and California's unfair competition law by making "parody" videos allegedly suggesting that the liberal entertainer had endorsed or was affiliated with the conservative Irvine Assemblyman's campaign.

Order Denying Chuck Devore's Motion to Dismiss

The lawsuit, filed April 17, alleges that DeVore and his campaign's Director of New Media and Internet Strategies, Justin Hart, committed direct, contributory, and vicarious copyright infringement by using "The Boys of Summer" in what DeVore has termed a "parody" that substitutes new lyrics attacking his opponent, Sen. Barbara Boxer. The suit also alleges that the use of "The Boys of Summer" and "All She Wants to Do Is Dance" violated Section 43 of the Lanham Act and California Business & Professions Code section 17200 by confusing the public into believing that Henley supports DeVore and his campaign.

In his July 8 ruling, Judge James Selna rejected DeVore's argument that the Lanham Act only applies to commercial -- as opposed to political -- speech, relying heavily on the Ninth Circuit's decision in Committee for Idaho's High Desert Inc. v. Yost, 92 F.3d 814 (9th Cir. 1996) and the Second Circuit's in United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997). While acknowledging that the issue was "unclear," the court determined that Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2005), which held that "the noncommercial use of a trademark as the domain name of a website ... does not constitute infringement under the Lanham Act," does not apply to false endorsement claims like Henley's. The court also held that the Supreme Court's Dastar decision, which warned against allowing Lanham Act claims to become a "species of mutant copyright law," does not bar Henley's claims because Dastar involved a "reverse passing off" theory not at issue here.

On the section 17200 claim, the court held that a "claim based on Henley’s persona or identity would not be preempted" by the Copyright Act. The court appears to be confused as to whether Henley is claiming copyright as to "All She Wants to Do Is Dance." I think it's fairly clear from the complaint that he is not. Henley (and co-plaintiff Mike Campbell) claim ownership in the composition for "Summer" (and infringement of that work), but the only claims in the complaint regarding "Dance" are by Henley only, for false endorsement/association. The order (and the motion it addressed) does not concern Henley and Campbell's copyright claims regarding "Summer." The entire case now goes forward.

Devore's motion is here; Henley's opposition here.

(Headline updated.)

'Corzine Times': Infringement? Parody? Satire? Homage?

The Republican Governors Association thought it had a clever idea for attacking incumbent John Corzine (D-NJ), who is up for reelection this year: create a web site for a fake newspaper called The Corzine Times, with links to real stories bashing Corzine. The Corzine Times just happens to resemble another newspaper across the Hudson.

Well, that other newspaper is not amused; it quickly sent a cease and desist letter to the RGA, complaining that the site

is clearly intended to be nearly identical to NYTimes.com...The title for the site is designed to recall the world famous, protected New York Times logo, and the pages use the same fonts and layout as nytimes.com in order to mimic its design. Such copying is a clear infringement of The Times's rights under the Copyright Act of 1976 and falsely suggests, in violation of the Lanham Act, that the Times has sponsored or is otherwise affiliated with your website.

The Times' letter, dated June 17, gives the RGA three days to take down the site, "or we will have no choice but to pursue all available legal remedies." It's now been eight days since the letter was written, and the Corzine Times is still up. If the Times was so eager to have the site down, why hasn't it just sent a DMCA notice to the Corzine Times' ISP?

The RGA certainly doesn't sound like it's backing down; spokesman Mike Schrimpf tells the Washington Post's Chris Cillizza (whom I like to call my stalker, since he succeeded me directly in two journalism jobs):

It's amusing to see The Gray Lady standing up for The Gray Beard, but we were hoping the Times would send a cease and desist notice to Corzine telling him not to hike taxes by another $1 billion.

This could turn out to be a very interesting case; I'm not at all confident in predicting how a court will see it.

UPDATE: a reader reminds me of another parody/satire/who knows of the NY Times:


I'm not aware that the Times ever objected to this one, though DeBeers, the target of a fake ad in the fake Times, did. The fake Times remains accessible on the web.

Don Henley opposes motion to dismiss false endorsement/association claims against Chuck DeVore

In the lawsuit by Don Henley against California state Assemblyman and US Senate candidate Chuck DeVore (R) over two song "parodies," Henley has filed his opposition to DeVore's motion to dismiss the complaint's Lanham Act and section 17200 claims.
Opposition to Motion to Dismiss in Henley v. DeVore


The allegations relevant to this motion are that DeVore and his campaign's web guru Justin Hart, by making a video that used the tune to "All She Wants to do is Dance" but replaced the lyrics with attacks on Sen. Barbara Boxer (D-CA), falsely implied that Henley -- a long-time liberal activist who has donated at least $9,000 to Boxer's campaigns -- had endorsed or was affiliated with DeVore and his campaign. Here's my post discussing DeVore's motion.

Bill Clinton loses cybersquatting claim (unlike his wife)

Former president Bill Clinton has lost an arbitration proceeding to wrest control over the williamclinton.com, williamjclinton.com, and presidentbillclinton.com domain names away from an alleged cybersquatter. As my McCain Legal colleague Matt Sanderson explains in a guest post at Election Law Blog:

Nearly a decade ago, President Bill Clinton signed into law the Anticybersquatting Consumer Protection Act and took aim at the practices of "cybersquatters"--individuals who buy-up web domains that evoke others' famous or trademarked names. Now the cybersquatters appear to be exacting some revenge on Mr. Clinton.

Joseph Culligan, a man who reportedly owns over 500 candidate-related domain names and who once offered PresidentHatch.com to U.S. Senator Orrin Hatch for $45,000, purchased WilliamClinton.com, WilliamJClinton.com, and PresidentBillClinton.com. He then linked each of the sites to the Republican National Committee's webpage. In an opinion issued earlier this week, a National Arbitration Forum ("NAF") panelist rebuffed Mr. Clinton's attempt to claim the domains. The opinion and result are notable for three reasons.

What are those "three reasons"? You'll have to read the original post to find out.

Matt, an attorney with Caplin & Drysdale in Washington, has written an article about the issue of political cybersquatting: Candidates, Squatters, and Gripers: A Primer on Political Cybersquatting and a Proposal for Reform.

Sonia Sotomayor, destroyer of infringing goods

The Wall Street Journal's Washington Wire blog has the scoop:

By the mid-1980s, [Sotomayor's law] firm [Pavia & Harcourt] had accumulated thousands of the illegal knockoffs [of Fendi handbags] through seizures, and was looking for a way to show the U.S. public that the brand name was being protected.

With Sotomayor in charge, the firm decided in 1986 to stage a bonfire – to be known as the “Fendi Burn” – in the parking lot of the Tavern on the Green restaurant. There was a catch, however: the New York Fire Department refused to permit it.

So the firm decided on the next best thing, crushing the items in garbage trucks, in an event that came to be known as the “Fendi Crush.”

“In the presence of the press…we threw masses and masses of handbags, shoes, and other items into these garbage trucks,” [Managing Partner George] Pavia recalled today. “It was the pinnacle of our achievement, and Sonia was the principal doer.”

Read the whole thing for some fascinating detail on Sotomayor's previous life as an IP litigator.

DeVore moves to dismiss Don Henley's false endorsement/association claims over campaign video 'parody'

California state Assemblyman Chuck DeVore (R) has moved to "strip away some clutter" from Don Henley's suit against him over the use of "The Boys of Summer" and "All She Wants to do is Dance" in "parody" videos intended to promote DeVore's campaign against Sen. Barbara Boxer (D), moving to dismiss Henley's Lanham Act Section 43(a) and California Business & Professions Code section 17200 claims.
DeVore Motion to Dismiss

Publish at Scribd or explore others: Law & Government Business & Law free legal

The allegations relevant to this motion are that DeVore and his campaign's web guru Justin Hart, by making a video that used the tune to "All She Wants to do is Dance" but replaced the lyrics with attacks on Boxer, falsely implied that Henley -- a long-time liberal activist who has donated at least $9,000 to Boxer's campaigns -- had endorsed or was affiliated with DeVore and his campaign. DeVore argues that the false association claims fail because Henley has not alleged use of his "distinctive attributes" -- a factor that made viable "sound-alike" suits like those brought by Tom Waits and Bette Midler.

DeVore argues that this case is more like Nancy Sinatra's suit against Goodyear Tire for its use in an ad of "These Boots Are Made for Walkin'" -- a song with which she is associated but does not own the copyright. (Irrelevant personal aside: my grandfather is the founder and still CEO of Criterion Music Corp., which does own the copyright in "Boots" and, as the Ninth Circuit noted, licensed the composition for use by Goodyear.) In Sinatra, the Ninth Circuit held that to allow her to pursue a state-law unfair competition claim would "clash with federal [copyright law] law." DeVore also relies heavily on the Supreme Court's 2003 Dastar decision, which warned against permitting Lanham Act claims to expand into a form of "mutant copyright law" with no temporal limit.

Notably, DeVore did not move to dismiss Henley's copyright claims over the use of "The Boys of Summer," which he wrote and whose copyright he owns (Henley does not claim copyright ownership in "Dance"). Presumably DeVore will at some point assert fair use on the copyright claims, but did not believe that a motion to dismiss was the most effective vehicle for that argument.

My previous coverage of the DeVore/Henley dispute can be found here, here, and here.

'AstroTurf' vs. 'astroturf': can a trademark owner control uses of its mark in a news article?

Liberal blogger Matt Yglesias has a post raising an issue that I've always felt was silly but which I've never seen definitively resolved: is there a non-frivolous claim against a newspaper for improperly genericizing a trademark?

Yglesias noted that yesterday's Paul Krugman's column refers to the ongoing "tea party" protests as "AstroTurf (fake grass roots) events." Yglesias doesn't like that the column uses the proper trademark term "AstroTurf," and suggests "astroturf" would have been more appropriate:

They’ve got that capital “T” in “AstroTurf” because it’s an actual brand name, like Xerox or Kleenex, and not just a generic term for fake grass. But Krugman is using a metaphorical extension of the term that’s common political discourse. An astroturf operation is a fake grassroots operation. It’s not not a brand name, it’s just a word, albeit a word based on the brand. I think the Times has made the wrong call here.

On the other hand, the company that owns the AstroTurf trademark presumably feels compelled to dispute the use of its mark as a generic term for fake stuff. A blog can fly under the radar easily enough, but the NYT might be exposing itself to legal harassment if they let Krugman write “that’s nothing new, and astroturf has worked well for Republicans in the past.”

Is the part about "legal harassment" plausible? Sure, any trademark owner can fire off a letter, but can the AstroTurf people actually demand that the Times not use the word "astroturf" pretty much however it wants in a news article? I seriously doubt it. Without delving too deep into trademark doctrine, it seems to me there are numerous reasons why the owners of the AstroTurf mark couldn't stop the Times from using "astroturf" as Yglesias suggests, most obviously that it would be a non-commercial, non-trademark use that is fully protected by the First Amendment. In sum, the Times isn't selling a competing fake grass product; it's merely using a word--albeit one inspired by a trademark--to make a political point.

So I think the most the AstroTurf people could do would be to send a letter to the Times saying something like: "We have a valuable brand that we'd like to keep from going generic, and we'd really prefer that you only use the term 'AstroTurf,' and only to refer to our product. Pretty please." But any suit against the Times for "misusing" a trademark in a news article would be a loser.

Any trademark lawyers out there? Am I missing something?

A call for a new '.pol' domain to combat political cybersquatting

My former McCain Legal colleague Matt Sanderson has published a very interesting op-ed in the Washington Post on an issue squarely at the intersection of IP and election law: cybersquatting cases where the domain name incorporates the names of a political candidates. The problem is common, and often quite pernicious, writes Matt, an attorney in the Political Activity Law practice group at Caplin & Drysdale in Washington:

Politicos make inviting targets because they often launch candidacies well after media and public speculation begins, giving cybersquatters a head-start to buy-up sites. For instance, BarackObama2008.com was acquired only hours after the then-senator's eloquent address at the 2004 Democratic National Convention. RudyForPresident.com was snapped up just eight days after the Sept. 11, 2001, terrorist attacks.

Many political cybersquatters simply hope to ransom their purchases to candidates who must quickly secure a site in a time-sensitive environment. Others' motives are more menacing. In 2004, for example, a cybersquatter deceitfully solicited funds through JohnFKerry-2004.com, which was nearly identical to Sen. John Kerry's authorized site. Likewise, in 2008, the cybersquatter site JohnMcain.com featured a contribution page almost indistinguishable from the similarly spelled official campaign site, JohnMcCain.com. Such counterfeit contribution pages raise serious monetary- and identity-theft concerns; they are also likely to become more common as others imitate these schemes.

Candidates can seek redress through ICANN or the courts, but victory is far from certain -- no one is entitled to an absolute monopoly over the use of his or her name in a domain -- and litigation even over meritorious cases may drag on far longer than a campaign.

What to do? Matt proposes the creation of a new ".pol" top level domain only available to genuine candidates and political groups. Explains Matt:

Internet users would be able to easily locate candidate sites because the ".pol" ending would provide a reliable shortcut for finding and identifying official Web pages. So even if a cybersquatter builds a counterfeit contribution page on a ".com" site, as happened in 2004 and 2008, informed campaign donors could visit a .pol site for assurance that their money would go to the intended recipient. A .pol domain would significantly reduce the extortion, confusion, fraud and reputation exploitation associated with political cybersquatting.

I'm no expert on domain names, but this seems like a smart solution to me. A much lengthier and more detailed version of Matt's proposal is available here.