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The Honolulu Advertiser
Posted on: Friday, June 30, 2006

Blogger shuts down Web site that mocked legislator

By Derrick DePledge
Advertiser Government Writer

An irreverent local blogger has chosen to give up a Web site making fun of state Rep. Bev Harbin after Harbin threatened to take him to court under the state's law against cybersquatting.

Jon Asato, a tour guide and writer, said he agreed to drop the domain names BevHarbin .com and BeverlyHarbin.com after Harbin sent him two letters warning of a civil lawsuit. Asato said his Harbin Web site, which had cartoons that likened Harbin to The Incredible Hulk and the Joker character from the movie "Batman," should be protected as free speech.

But he said he did not have the money for a legal fight and instead has posted the cartoons and commentary about his experience on his celebrity gossip Web site, "talkstink.com."

Harbin, D-28th (Iwilei, Chinatown, Kaka'ako), said she was not really offended by the cartoons but wanted the rights to her name in an election year. "I don't care about the parody. I had people call me up and say it was the cutest thing they had ever seen," she said.

Harbin was appointed in September by Gov. Linda Lingle to fill a House vacancy but was asked to resign after it was discovered she had unpaid state taxes and misdemeanor convictions for writing bad checks. She refused to resign and is running to retain her seat.

"I've worked 60-something years to get my name to mean something," she said. "It's good. It's bad. It's ugly. But it's mine."

The disagreement between Asato and Harbin may seem small in scale but involves a fundamental constitutional right free speech and the evolving rights of people to control the use of their names on the Internet.

LAW PASSED IN 1999

Congress passed a cybersquatting law in 1999 after Internet-savvy profiteers outfoxed celebrities and major corporations by registering their names and trademarks and then asking for money to give up the Web rights. The federal law allows for civil action against people who in bad faith attempt to profit from domain names that use other people's names or trademarks, with penalties that include the forfeiture of domain names and fines of up to $100,000 for each improper domain name.

But the federal law gave the courts several factors to consider when determining bad faith, including the noncommercial or fair use of names or trademarks to protect free speech.

Hawai'i adopted a similar cybersquatting law in 2001 after examples where people registered domain names sought by politicians such as Lingle and Mazie Hirono. State law also allows for civil action that could lead to forfeiture of domain names, and compensatory and punitive damages.

But the state law is more expansive than the federal law because it does not require that people attempt to profit from a domain name before they face civil action.

"A cybersquatter could cause harm without intending to profit by placing a person's name on the Internet, along with information that could tarnish or disparage the person," according to a House committee report explaining the distinction.

While state lawmakers were trying to give people more insulation from Internet abuse, they may have created a conflict, because they also adopted the potential exception for noncommercial or fair use that is identical to the federal law.

The American Civil Liberties Union of Hawai'i would not take Asato's case because it was not accepting new cases at the time. But Lois K. Perrin, the group's legal director, said it raises First Amendment issues. "The Internet is a medium of speech, and laws that regulate it should be consistent," she said. "It would seem that the state law is inconsistent."

Martin Hsia, a patent attorney with Cades Schutte who has experience in cybersquatting cases, said the question falls into a legal gray area. He said there is an apparent overlap between Harbin's right to use her name for publicity and Asato's First Amendment right.

Hsia said he is not aware of a significant case testing the state law. "There's a possibility that she would have won if she filed a lawsuit, but it's kind of hard to prove the guy was in bad faith given the standards for bad faith and especially in view of some of the issues of fair use," he said.

REACHED APPEALS COURT

The federal cybersquatting law has not reached the Supreme Court, but federal appeals courts have interpreted it in free-speech cases. In 2001, the 4th U.S. Circuit Court of Appeals in Virginia ruled in favor of People for the Ethical Treatment of Animals after a Maryland man registered a PETA Web site that promoted meat-eating and wearing fur.

The man claimed the Web site was a parody, but the court found that the name did not meet the standard for parody because readers would not know it was fake until after they clicked on the site. The man had also suggested he would sell the rights to the Web site to PETA.

Asato, in e-mail to The Advertiser, said the legal threats squelched his freedom of speech and caused him to reduce his posts on his other Web sites. He said Harbin used a badly worded state law to bully him.

"There are local political issues that I find incredibly frustrating, but Harbin was the first public official whose arrogance made me say to myself that I had to do something," he said. "Some people join political parties, go to City Council meetings, attend protests me, I find that being creative is how I best come to terms with life's frustrations."

Harbin said Asato could have confused readers searching for information about her even though his site was for satire. She also wonders why he did not just post the cartoons on one of his other Web sites, like he eventually did anyway.

"They'd rather just sit back and hide behind a computer screen," she said of some bloggers. "They won't come out and scrap."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.