Recently we posted a story Victory For The Little Guy, about BMOrg’s failure in its personal pursuit of Napalm Dragon in Canada.
One of our readers Anon said:
“It would be helpful to provide links to the documents, or the documents themselves, that caused this article. This includes, but may not be limited to, the court’s decision, any settlement agreement(s) and/or stipulation(s) and the final judgment from the court that sets forth the determination from the court (as to him personally and the corporation) and the ability to enforce that determination/judgment.
Everything else is, as they say, commentary, especially where you have a non-lawyer characterizing legal documents that may or may not be a correct characterization of those documents. He may be entirely correct as to what he claims, but it may also come as no surprise that sometimes legal documents get misunderstood by even the finest trained or untrained legal minds. This is what often leads to litigation.”
Fair enough – we always like primary source documentation here, the more the better. We are trying to deal in #truth, not propaganda. So we posted the documents we had available at the time, and asked Napalm Dragon to provide more. He refused, which is also fair enough: you’d probably be sick of the whole Burner world too, if you’d just spent two years of your life being hounded by them trying to extract every last cent you had.
Well, luckily for us all, BMOrg have published some documentation. They said:
Update 1/21/16:
For those of you who have asked to see the Court’s judgments in writing, here they are for the record:
- 2014-11-06 Order denying defendant motion to represent Burn BC
- 2015-01-13 Order re motion for default judgment
- 2015-12-21 Decommodification v Burn BC – Settlement Agreement
- 2016-01-19 Judgment against defendant
[Source: Burning Man Journal]
Unfortunately, you have to actually click these links to realize that what they said is not true. The first 3 links all go the same document from 2014. The Settlement Agreement from a month ago is Missing In Action. The only new piece of information provided is the 2016 judgement, which says:
In BMOrg’s spin, this is a resounding victory for them, and a massive loss for the alien entity determined to ruin their shiny corporate values with the foolish idea that “burn culture means something to the people who created it”. If you set fire to an effigy anywhere on the planet, you are worshipping the Ten Principles™, and doing something that Burning Man™ invented and owns. Got it? Crimson Rose invented fire dancing, and now we have the court documents that prove it.
Or do they?
At first glance, from BMOrg’s point of view this seems like a win. Bhak and Burn BC can’t use Burning Man or Decompression.
The problem with this narrative, is
- Decommodification LLC and their tax-exempt subsidiaries did not register any trademarks in Canada before 2014; Canada has different trademark laws to the US
- Bhak did, saying he wanted to protect Burner culture from commercial exploitation, by placing them in the public domain to benefit all Canadians
- The new U.S. corporation that Burning Man sold (Gifted?) the U.S. trademarks to sued him, in order to be able to exploit the marks commercially
- Bhak was not allowed to mount a defense, since he couldn’t afford a lawyer; he publicly stated he would let the trademarks lapse so BMOrg could finally get around to registering them
- There was a default court judgement, which acknowledged BMOrg’s rights to the claim and prevented Burn BC from using the marks
- BMOrg decided to go for the jugular, coming after him personally for further damages
So #1, in the Judge’s Order reproduced above – they had already won that. He agreed not to contest the trademarks if Decommodifcation LLC wanted to register them in Canada, and he agreed not to use them. The only new thing in a year is #2. Correct me if I’m wrong, lawyers, but “The Plaintiffs’ action is dismissed, without costs” means “Plaintiff lost”.
Most of this happened in 2014. In January 2015 we covered it in this story: Burn BC Admits Defeat in Battle for Public Domain
[Source]
The above reads to me like the judge said “$10,000 total, including costs and damages”. However, on the record it looks like $10,000 in damages and $10,000 in costs:
[Source]
Whether the final reward was $20k or $10k is neither here nor there for a $32 million corporation. To put this in perspective, it is about the same as what BMOrg spends in a month on Board member Terry Gross or costumes (although that has been kept a secret since 2013).
So what has happened in the year since this ruling? Why is this case still continuing?
Cutting a long story short, BMOrg continued to pursue the guy personally – and this is what has just been thrown out by the judge.
I have been busy with other things this week and so missed the BJ post Burning Man Resolves Trademark Issue in Canada. Luckily, other Burners are on the case – thanks Ang and Nomad. Ang has actually summarized what’s going on here very well, after several unsuccessful attempts to get straight answers out of the spin team:
The documents attached and the links provided in the various messages pose more questions than answers, and do not support any indication that Decommodification won anything more than one-time trademark protection.
Decommodification originally sought a cease and desist order with regards to use of their identity (a valid claim), ownership of the Burn BC identity and $25,000 in punitive damages. They ended up with a cease and desist agreement, no ownership of Burn BC, zero dollars in damages…and several thousands of dollars paid out in legal fees.
Burning Man’s initial post above implies that the defendant was required by law to appoint a lawyer and was not qualified “under Canadian law” to represent himself. Yet the document attached by Burning Man dated November 2014 implies that he may very well have been permitted to represent himself…if not for the lengthy, legal objection filed by Decommodification’s corporate legal team in that document. That objection alone, with its citings of previous cases, must have cost Decommodification thousands of dollars in legal costs.
The last sentence in the last document attached says it all: Besides the defendant agreeing to not associate his organization with Burning Man, the entire case “is otherwise dismissed”. No damages paid to Decommodification, no further repercussions against the defendant.
Which begs the question: What was the point of all this? What did Decommodification hope to gain from spending untold tens of thousands of dollars fighting a legal battle in a foreign country…for what? Just to put down some nobody clown who nobody ever heard of until gifted with this notoriety?
Moreover, nothing in what has been made public so far shows any deterrent for the next clown with a lot of time and no money, who, either out of playfulness or vindictiveness, decides to pull the same stunt only to “bleed” Decommodification financially.
Companies work hard to build their corporate identity and need to protect it. Considering the free-spirited culture they purportedly encourage, could Decommodification practice a bit more prudence rather than costly unbridled litigiousness?
[Source]
It’s kind of cute – but hardly ironic – to watch the BMOrg propaganda team in action.
- First, we see someone posting anonymously in the comments at Burners.Me saying “but where are the documents?”, with a tone implying that we are trying to mislead readers by not posting them.
- Next, BMOrg do a BJ post saying “we won and look, here are all the documents to prove it”. Presumably, the implication is that they are being transparent and only dealing in facts (by posting the documents). Judging by the comments, that works on some of their audience.
- In fact, they don’t post these documents at all. The one new document they do post, really shows the opposite, further confirming the facts of our story.
- All the other links in reality point to a single document. This shows how they got the Court to prevent Bhak from mounting any kind of defense or submitting his own evidence and arguments. This was certainly a moment of legal victory for the Decommodification, LLC team, but is much less relevant to the discussion than the Court Documents link we posted in response to Anon’s request. What it illustrates is BMOrg’s bully tactics, and how unjust this Goliath vs David proceeding was.
- The same anonymous person posted here again about the documents, immediately before BMOrg posted their update. Then, they posted a third time with a link to BMOrg’s new post, saying “This is why seeing the original court documents is helpful since there’s obviously another side to the story”. They don’t appear to have actually read the original court documents in the post they’re linking to, since that post did not link to any except the final ruling which supports our original story and Napalm Dragon’s position, and the suppression of legal defense.
- Then, BMOrg employ techniques of spin and wordsmithing (the latest Minister of Propaganda has a degree in Rhetoric) to craft reality into an outcome that appears more favorable to them.
- Next, they get their Propaganda team in the comments, to spread further misinformation (note they have specifically stated that there is no obligation for them to post true information in their comments)
In this case, “Burning Man” (speaking under cover of anonymity about their own story) said:
“Burning Man just isn’t enforcing the monetary award” – well, technically that’s true as of yesterday, when they made this statement. Their heavyweight multi-national legal team just spent more than a year trying to enforce the $10,000 monetary award, and now that Decommodification & Co lost that case and the judge dismissed it without costs, they can’t do it anymore. Which is hardly a gracious concession on their part.
Here’s the Propaganda-spun version:
Again, I’m no expert, but it’s hard for me to interpret the Judge’s ruling “Plaintiff’s case is otherwise dismissed, without costs” as something that gives BMOrg a choice to enforce a financial judgement against Burn BC.
It’s worth noting also that to dismiss this case last week (Jan 19th), the judge didn’t even show up in the courtroom.
Which does call into question Napalm Dragon’s tale of a lawyer cowering in defeat…
…although the date on this post is the 13th. The last session I can find with the parties together was a court-scheduled mediation by video-conference in November 2015:
Perhaps it was related to this session on January 12:
I asked Napalm Dragon to comment, and of course anyone from BMOrg is most welcome to comment here too. He said:
Here is the Facebook Link https://tinyurl.com/BurnBC-End-Game
There is a lingering question that has been posed to me in light of some PR published on a website in the USA, regarding why “I WON”.
Like always, check the facts, do your own research, read the documents, make up your own mind. When we provide links as references, we link to actual information. Why would we do that, unless we were concerned about #truth? Why would BMOrg post fake links to different documents, if they cared about truth – not propaganda and “optics”? [Update: possibly in response to this story, BMOrg did produce the documents and apologized for the error. We have also published more documents, see below]
The bottom line to this story is Napalm Dragon tried to protect burn culture from commercial exploitation, and got sued by the corporation seeking to commercially exploit it. The latter group won the right to continue their exploitation unfettered, but kept pursuing a few meager dollars. BMOrg’s justification for this is they are trying to “protect our culture”. Meanwhile, Burners everywhere are dismayed as our culture is in tatters. The Founders say “we’ve jumped the shark and that’s OK”; the Veterans who have given so much to make this city world renowned are being shoveled out the door to make room for starry-eyed Simpsons spectators, who saw Dr Phil and thought they’d come see the freak show while bringing their grief and misery to the Temple.
SO… who’s left to protect our culture?
Court Documents:
List of Official Court Information, including key dates and filings
19 January 2016 Judgement Against Defendant
21 December 2015 Settlement Agreement
13 January 2015 Decommodification LLC vs Burn BC Arts Cooperative Order and Reasons
13 January 2015 Order re Motion for Default Judgment
6 November 2014 Order Denying Motion to Represent Burn BC
27 April 2014 Original Statement of Claim
[Update 1/23/16 1:19pm]
Thanks to a reader for pointing out that Decommodification, LLC filed a trademark application in Canada in 2014 – one which may have implications in the present “live entertainment” argument that is currently holding up ticket information for everyone.
[Update 1/25/16 9:19am]
Looks like BMOrg have fixed their links. Here are the additional court documents:
21 December 2015 Settlement Agreement – note this confirms that Burners can throw an event called The Burn
13 January 2015 Order re Motion for Default Judgment – in which we have a judge saying “Burning Man is a festival”
We’ve also obtained the original 27 April 2014 Statement of Claim by Decommodification LLC, Burning Man Project, and Black Rock City LLC, doing business as Burning Man. This document begins with the statement “if you wish to defend this proceeding, you or a solicitor acting for you are required to prepare a statement of defence…” – which is ironic, given BMOrg’s later successful legal move to prevent the defendants from mounting a defence without a solicitor.
It also says “the Plaintiff’s intention is to bring together a community of individuals of similar artistic and spiritual ideas and to create an environment in which individuals are encouraged and enabled to express artistic interests and join other artists in the creation of their vision”. So it’s a festival about art, and spirituality.
There is no vending of drinks, which is an interesting statement to make in a legal case.
Image: Business Insider
They say “the only exception is for ice and coffee, which are sold by volunteers, with all profits donated to local municipalities”. It would be nice to see an accounting of these donations, old Burning Man used to share it but in Burning Man 2.0 it is now secret – we just have to take their word for it. There is nothing in the IRS Form 990 for 2014 mentioning this program or these local donations – although it does recognize revenue from sale of inventory of $258,803 and merchandise of $39,201; the costs for sale of ice, coffee, and merchandise in 2013 was $455,546; in 2014, ice alone was $477,770. So is this program making a loss now? Or was $258,803 the amount given to local charities from the on-site cash vending?
Anyway, let’s hope all this documentation is enough to satisfy Anon!
Over at the BJ, Ang has commented that after reviewing the available documents, their verdict is “DRAW”. Which means BMOrg managed to go from Victory to Draw by continuing to pursue this for a further year.
Thank you, Burning Man, for posting the missing documents. They make for some interesting reading, and while I admit I have only a cursory knowledge of the case, I was inspired enough to read a bit more of what each party is saying to claim victory over the other.
To put it bluntly, it’s a case of Slick Multi-Million Dollar Corporate PR vs Bloviated Bravado from an Egomaniac out of his league.
The documents show that the defendant attempted to trademark the Burning Man identity in Canada, including “BC Decompression” and “burningmanarts.ca” ( “.ca” being the extension for Canada, as “.mx” for Mexico). That is such an egregious infringement that one has to wonder why it was attempted if not to deliberately engage Decommodification in lengthy – and very public- litigation.
In reading his over-the-top “victory” speech/claim, the defendant asserts he was working for *all* Canadian Burners to put Burning Man in the public domain in Canada.
Is he serious? I am not aware of any public outcry from Canadians claiming they particularly want, or care, or would even be better served by, that corporation in the public domain.
The fact is that this guy no more represents volunteer Burners in his country than (as Nomad points out in his comment above) Decommodification represents all volunteer Burners who make the event happen.
But more importantly, this decision by the court, buried within the documents and not highlighted in any great detail by either party in their subsequent spins, highlights the biggest victory for Decommodification and loss for the defendant. The defendant lost in his attempt to claim the Burning Man identity for himself, for whatever purportedly altruistic (real or imagined) intentions he may have had.
In the end, both sides wound up exactly where they started, save for tens of thousands of dollars (if not more) paid out in legal fees by Decommodification and mental stress and anxiety on the part of the defendant (inspiring him, at some point, to lead a Fund-me campaign to send him on a de-stressing vacation (?!?!)). Subtlety has obviously never been one of his traits.
As for the defendant’s assertion that he made Decommodification’s lawyer “go pale” and cowered before the defendant’s legal mastery and “destruction” of Decommodification’s case against him…um, yeah.
Both sides won some and lost some. The defendant keeps his company and his company only and Decommodification keeps theirs. Each can claim victory (and one can claim he “destroyed”) the other, but I’m calling it a draw.
[Source: Burning Man Journal comments]
[Update 1/25/16 10:43am]
Not really off topic, since the Burning Man Project legal team has moved from one public battle to another – one which is Immediately affecting every Burner negatively, with an unclear upside. I mean, sure, we all want to save $35 from our overall cost of going to Burning Man – but we’d all like to be buying tickets and planning art projects too. Burners can pay the tax and carpool, thus being left with a $15 profit after saving on the vehicle pass.
Thanks to A Balanced Perspective for sharing a link to the actual legislation for the Nevada Live Entertainment Tax. What do they mean by Live Entertainment?
“Live entertainment” means any activity provided for pleasure, enjoyment, recreation, relaxation, diversion or other similar purpose by a person or persons who are physically present when providing that activity to a patron or group of patrons who are physically present.
…(b) Excludes, without limitation, any one or more of the following activities:
(6) Entertainment provided by a patron or patrons, including, without limitation, singing by patrons or dancing by or between patrons;
What an interesting coincidence, that we have a theme of Medici and patronage, when the word “patron” is key to BMOrg Decommodification LLC’s latest legal adventure.
NRS 368A.090 “Live entertainment” defined.
1. “Live entertainment” means any activity provided for pleasure, enjoyment, recreation, relaxation, diversion or other similar purpose by a person or persons who are physically present when providing that activity to a patron or group of patrons who are physically present.
2. The term:
(a) Includes, without limitation, any one or more of the following activities:
(1) Music or vocals provided by one or more professional or amateur musicians or vocalists;
(2) Dancing performed by one or more professional or amateur dancers or performers;
(3) Acting or drama provided by one or more professional or amateur actors or players;
(4) Acrobatics or stunts provided by one or more professional or amateur acrobats, performers or stunt persons;
(5) Animal stunts or performances induced by one or more animal handlers or trainers, except as otherwise provided in subparagraph (7) of paragraph (b);
(6) Athletic or sporting contests, events or exhibitions provided by one or more professional or amateur athletes, sportsmen or sportswomen;
(7) Comedy or magic provided by one or more professional or amateur comedians, magicians, illusionists, entertainers or performers;
(8) A show or production involving any combination of the activities described in subparagraphs (1) to (7), inclusive; and
(9) A performance involving one or more of the activities described in this paragraph by a disc jockey who presents recorded music. For the purposes of this subparagraph, a disc jockey shall not be deemed to have engaged in a performance involving one or more of the activities described in this paragraph if the disc jockey generally limits his or her interaction with patrons to introducing the recorded music, making announcements of general interest to patrons, and explaining, encouraging or directing participatory activities between patrons.
(b) Excludes, without limitation, any one or more of the following activities:
(1) Instrumental or vocal music, which may or may not be supplemented with commentary by the musicians, in a restaurant, lounge or similar area if such music does not routinely rise to the volume that interferes with casual conversation and if such music would not generally cause patrons to watch as well as listen;
(2) Occasional performances by employees whose primary job function is that of preparing, selling or serving food, refreshments or beverages to patrons, if such performances are not advertised as entertainment to the public;
(3) Performances by performers of any type if the performance occurs in a licensed gaming establishment other than a licensed gaming establishment that is licensed for less than 51 slot machines, less than 6 games, or any combination of slot machines and games within those respective limits, as long as the performers stroll continuously throughout the facility;
(4) Performances in areas other than in nightclubs, lounges, restaurants or showrooms, if the performances occur in a licensed gaming establishment other than a licensed gaming establishment that is licensed for less than 51 slot machines, less than 6 games, or any combination of slot machines and games within those respective limits, which enhance the theme of the establishment or attract patrons to the areas of the performances, as long as any seating provided in the immediate area of the performers is limited to seating at slot machines or gaming tables;
(5) Television, radio, closed circuit or Internet broadcasts of live entertainment;
(6) Entertainment provided by a patron or patrons, including, without limitation, singing by patrons or dancing by or between patrons;
(7) Animal behaviors induced by animal trainers or caretakers primarily for the purpose of education and scientific research; and
(8) An occasional activity, including, without limitation, dancing, that:
(I) Does not constitute a performance;
(II) Is not advertised as entertainment to the public;
(III) Primarily serves to provide ambience to the facility; and
(IV) Is conducted by an employee whose primary job function is not that of an entertainer.
[Source]
Ironically, the DJ clause seems to suggest Dancetronaut’s guy on the mic actually may have helped BMOrg’s case that the music at Burning Man is not live entertainment.
[Update 1/25/16 2:42pm]
A Balanced Perspective has pointed out that the law as shared dates from 2006; does anyone have a link to a more up-to-date version, assuming that the one posted on leg.state.nv.us can’t actually be trusted? This site says 2014 at the top, but 2003 and 2005 at the bottom.
Nevada Senate Bill 266 amends the Live Entertainment Tax – National Law Review, June 2015
The bill also removes most of the exceptions to the definition of “live entertainment.” Notably, “a performance by a disk jockey who presents recorded music” will now be taxable as live entertainment under all circumstances. However, under the plain language of the bill, the following activities will not be taxable:
go-go dancing;
activities that do not a constitute “performance”;
uncompensated spontaneous performances not exceeding 20 minutes in a 60 minute period, and;
marketing or promotional activities that are associated with the serving of food and beverages, and do not last longer than 20 minutes within a 60-minute period.
[Source]
Here is a proposed amendment to the law from August 2015 from gaming.nv.gov. Significantly, it defines Patron as:
NAC 368A.370 “Patron” defined. (NRS 368A.140) “Patron” means a person who gains access to a facility where live entertainment is provided and who neither solicits nor receives, from any source, any payment, reimbursement, remuneration or other form of consideration for providing live entertainment at the facility
[Source]
So if a patron pays a performer, they’re not both patrons. At least, that’s how I read it. I refer you to Marian Goodell’s interview last year in which she said Commodification Camps and sherpas were great because“The culture of Burning Man can really flourish with money…[for example] to bring great musicians to your camp”.
They are trying to broaden the DJ definition to include VJs, lasers, lighting and other visual effects:
“Performance” to mean, as used in subparagraph (5) of paragraph (b) of subsection 2 of NRS 368A.090:
(a) The presentation of a live entertainment activity [other than an ambient activity, provided by a person or group of persons to a patron or group of patrons] that is the primary reason for which a patron paid an admission charge to access the facility.
(b) When determining if the presentation of a live entertainment activity is the primary reason a patron paid an admission charge to access a facility, the Board may consider some or all of the following factors:
(1) Whether the live entertainment activity is advertised, promoted, or otherwise marketed;
(2) Whether the live entertainment activity garners the predominant attention of a patron or patrons of the facility; and
(3) Any other factor that would support a finding that the live entertainment activity constitutes a performance.
“Performance by a disc jockey” to mean the playing of recorded music, the mixing of audio or the adding of sound, video and lighting effects by a person or group of persons to a patron or group of patrons.
[Source]
So I guess a big test for Burning Man would be “did patrons buy a ticket to Burning Man to watch the Burning Man burn?” Presumably their argument is that we’re there for the TED talks and sex workshops – certainly, we couldn’t be there for the dance music!
Except as otherwise provided in subsection 3, an admission charge is subject to the tax imposed by NRS 368A.200 when it is paid in exchange for admission to a facility where live entertainment is provided, regardless of when the live entertainment actually commences.
[Source]
This wording from Justia (2014) is interesting:
5. The tax imposed by subsection 1 does not apply to:
(b) Live entertainment that is provided by or entirely for the benefit of a nonprofit religious, charitable, fraternal or other organization that qualifies as a tax-exempt organization pursuant to 26 U.S.C. 501(c), or a nonprofit corporation organized or existing under the provisions of chapter 82 of NRS.
[Source]
[Update 1/25/16 7:12pm]
Thanks to a reader who sent this in. Decommodification, LLC (operating out of BMHQ) filed a trademark application in Canada on January 11, 2016 for the familiar “Man” design.
Pingback: To Burn, Or Not To Burn? Who Decides The Question? | Burners.Me: Me, Burners and The Man
Pingback: Big Burner Bucks in the Biggest Little Tax Haven | Burners.Me: Me, Burners and The Man
My belief is it is most humorous in regards of the Burning Man Project board of directors permits their officers to apply, penning numerous statements that are most misleading, for the Burning Man(tm) and logo )'( trademarks, in Canada, for their for profit Decommodification LLC corporation, of which, it is owned by the six of them. My belief it is most appropriate of the 501(c)3 non profit Burning Man Project apply for the trademarks, in due of the Burning Man Project owns the Black Rock City LLC, in due of the BRC LLC has done business as Burning Man, beginning within 1999, and of near to all statements upon the trademark forms of Decommodification LLC describe of Black Rock City LLC, and of the Burning Man Project, in addendum of near to all statements upon the trademark forms are utter rubbish in regards to Decommodification LLC.
At present, no person, or company, owns the Burning Man name, and logo )'( trademarks within Canada. Napalm Dragon abandoned – voluntary, the Burning Man trademark upon 2014-07-10, and he stated all that was done after 2014-07-10 was solely vindictive, gaining the BMOrg near to nothing. My belief is Canada should not permit Decommodification LLC to gain the trademarks in due of numerous misleading rubbish statements upon their forms, and of might the Burning Man Project, in actuality, desire to protect the trademarks, the Burning Man Project must pen the trademark forms, in the place of Decommodification LLC.
My belief is this is the misleading rubbish statements upon the Burning Man trademark form penned by Decommodification LLC. My belief is the statements are most appropriate might the Burning Man Project pen the statements purposed for the Burning Man Project to gain the trademarks.
‘SERVICES:
(1) Business consulting services, namely, providing assistance in development of business strategies and creative ideation; business management consulting and advisory services; business services, namely, assisting others in the establishment of charitable organizations; promoting public awareness of public art and community
(2) Organizing cultural and arts events and art exhibitions; arranging, organizing, conducting, and hosting entertainment exhibitions, social entertainment events, events for cultural and community purposes, and special events in the nature of art and community festivals; entertainment in the nature of art and community festivals
(3) Consultation in the field of special event planning for social entertainment purposes; arranging and conducting educational conferences, business seminars, classes, workshops and training courses in the fields of community engagement, interactive art festivals and exhibitions, and leadership development; business training in the field of community engagement, interactive art festivals and exhibitions and leadership development; and charitable services, namely, providing training in the field of community engagement, interactive art festivals and exhibitions, and leadership development
(4) Organizing community festivals featuring a variety of activities, namely, live music, art displays, and participatory games; conducting entertainment exhibitions in the nature of art festivals; and entertainment in the nature of art festivals’
‘CLAIMS:
Used in CANADA since at least as early as 2012 on goods (1).
Used in CANADA since at least as early as May 2012 on services (1).
Used in CANADA since at least as early as 1999 on services (2).
Used in CANADA since at least as early as 2013 on services (3).
Used in UNITED STATES OF AMERICA on services (4).
Registered in or for UNITED STATES OF AMERICA on February 10, 2004
under No. 2,813,051 on services (4). ‘
Well…I’m glad you simplified that…hahahaha….
Thanks for the shout out. If my reference to “the rest is commentary” was lost to the rest of the world, here’s a backgrounder: http://forward.com/culture/14250/the-rest-of-the-rest-is-commentary-02564/.
To quote Jon Snow, I know nothing about Canadian law, but assuming it is similar to US law, the documents confirm that there’s no there there.
There was a lawsuit. Burning Man won the lawsuit and got the rights it desired plus a monetary judgment. A monetary judgment is worthless is there’s no assets to recover, if the cost to recover assets will outweigh the costs of recovery or if the ethics/politics make it unfeasible to collect the judgment even if the money is available. A better strategy is often to waive the monetary judgment to get the really important stuff, i.e. the rights, without fear of the litigation being extended by appeals or further requests to the court. Sometimes this is especially so when there is a litigant without an attorney, who can make things difficult just by being untrained in how to proceed, which typically increases the costs and time to favorably resolve a litigation. Typically, this is usually done by a global settlement agreement that resolves and ties up all issues. That’s what happened here and is confirmed by the order, judgment and settlement document.
The claims made by Napalm Dragon, as far as I can tell from the court documents themselves, appear (to be charitable) inaccurate. I leave to his storytelling about whether opposing counsel had the affect so claimed, but going to court (even for a big case) for a litigator is unlikely to bring such a reaction. But perhaps Canadian judges shed their expected niceness and appropriate judicial temperament in the courtroom and came down hard, eh? Unlikely, but I wasn’t there and all I have is the court documents and, in my opinion, there’s no there there.
It is standard that an individual can represent themselves, but an individual cannot represent a corporation (a corporation has potential many owners/interests, with potential conflicting interests, that can’t be represented by an individual who is not an attorney, who has but one client—the corporation—and not the individual’s own interests). This is the same as US law and is standard and not subject to argument in US court (and is even applied in US Small Claims Courts for amounts from $0 to $5,000): http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/aba-annual-2013/written_materials/5_1_litigation_ethics.authcheckdam.pdf. This is no mysterious issue. Again, I’m not familiar with Canadian law, but in the US there are various entities that provide free legal assistance, or take cases on contingency, and the fact that no counsel took the case (or perhaps Napalm Dragon didn’t bother to seek them out) is telling. Bottom line is that Napalm Dragon lost, he didn’t win, and the matter is now resolved in Burning Man’s favor.
On a side but unrelated note, I really enjoy your blog for the alternative viewpoints that it brings, but the way you do the updates (and then the substantive back and forth in the comments that is in date order but chopped up and interspersed throughout) make it all very hard to follow. You’re a big tech guy (I am not)—surely there must a better format/layout to incorporate new information, or just start a new blog entry. I just gave up on the IRS Form 990 back and forth, and an earlier post, as it was too much work to figure out what was new or not and to respond and/or clarify. I tell you this so that if I fail to reply, or do so slowly, you’ll know why.
Thanks Anon. I could disable nested comments, which means comments would only be in chronological order. I feel that would only add to confusion, and that being able to reply to specific comments makes it easier for regular readers of this blog to follow multiple discussions at once.
The system of updates is also in chronological order, if I were to just constantly re-write stories without doing the updates I think it would also be harder for readers to follow.
I am open to the suggestion though if others jump on board supporting it.
In the case of this story, I did start a new blog entry. Last week’s story was Victory for the Little Guy, and now you are commenting on a follow-up post to the story, Who Won, Who Lost, What’s Fact, What’s Propaganda?
Thanks for your response. For this post, I’d likely just delete what you had written before you got access to the correct documents once the Burning Man links were fixed (sort of like how news websites update their articles when they get new information) and note that what you had written (for transparency) was removed in a brief editor’s note at the bottom. I believe the wrong links to the court documents were just a basic web mistake (even Homer nods).
For the comments on this post, almost all of them are way off topic and not even closely related to this post, so there’s that 🙂
For researching Nevada law, I might start here, though I don’t know how often the statutes or other information get updated:
http://www.findlaw.com/casecode/nevada.html
http://www.leg.state.nv.us/law1.cfm
Burnersxxx, I hope you realize that all this message board advice from Anon is wrong at best and disinformation at worst. I manage several professional message board groups, as well as participate in more. His advice is what kills discussions, but makes it look nice to those that do not participate.
Like a good burn, this message board is those who participate and what they write, not those who complain that it does not read it like a newspaper.
I just read all the updates and here I was going to suggest putting links for updates at the top of each post, which gives the ability to go quickly deep into the post without having to scroll down to look for each update.
But whoa-chill out nomadtravelerforever and you doth protest too much. No desire or plan for disinformation or wrong advice on the website details. I’m just a person with limited time who clicks in from time to time on breaks and finds it difficult to read what’s written and to keep it all straight in mind. It ain’t my website so he can do what he wants (and I admit I’m not techie), but, trust me, I’ve been accused of worse in my day job and I don’t quake in my boots 🙂
Scrolling is difficult, I can sympathize. Stupid information and facts, getting in the way of reading a story.
Radical Self Reliance means that I should take even more time out of my day job, to make my hobby easier for you to understand – because Gifting, and Civic Responsibility, and Communal Effort, and Immediacy. Got it.
Some facts:
1. Anyone can jump to the “Updates” by searching (-F) for “[update”. (This is a VERY general skill one should learn if they want to brows the web, since it works on virtually any page on any browser.) The fact that you are consistent with your posting allows this, which is all that is reasonable to ask.
2. Not counting your effort, rewriting the entire post when you have an update makes EVERYONE read the WHOLE thing again – extremely counter-productive to the reader. However, it is much more convenient for people, like lawyers, who want to capture the whole post as a post-mortem after the post (and presumably the commenting) is dead.
“I’ve been accused of worse in my day job and I don’t quake in my boots”
Listen, honey, if I wanted to quake you in your boots, that would not be my comment. In fact, my observations were simple statements of fact from my professional experience. It also highlighted that you don’t see this as an interactive effort by the participants but just something for you to read – maybe you should bring that self/others issue up with your therapist at the next session.
My comment was addressed to Burnersxxx, and was to counterbalance his offer to change things here to make your simple life simpler. Maybe you should take an “Introduction to Computers” class or something. Pretty sure they are going to catch on. Who knows?… Might help you have less problems in your day job.
Touché and nice chatting with you.
Your suggestion is actually quite good , I will try 🙂
Thanks Nomad for your tips. I appreciate your computer help and sorry to get you all riled up. My reference to quake in your boots was joking cheeky reference to Napalm’s alleged effect on the Burning Man attorney and not meant to be your words. If it wasn’t funny, I’ll stick with my day job (but I like the honey reference–so strong!).
And for both Nomad and Burnersxxx, I’m not trying to change your blog. I’ve been interacting nicely, providing information and background and analysis, and I thought playing well with others in your sandbox, but I had a respectful suggestion and thought I’d share. If the suggestion gets rejected, that’s ok. I write quick on a break, and there’s no edit function, so it may not always come out the smoothest, but it’s meant with the best of intentions.
Anyway, I’ll move on from this to eplaya and think about ways to create my signature flair 🙂 (warning-more humor).
Lol move to ePlaya, good one. Says it all.
As I said, I will try to implement your suggestion. It addresses a common complaint of those who “have to” read this blog.
How many of you veteran burners can say, “Yes, I have been to Burning Man…” without a frown and adding, “…but that was before…” and then cite the caveat of your choosing.
I prefer the good old days, like 10 year ago when you could say, “Yes, I have been to Burning Man,” and just smile.
And that about sums it up. The perfect is the enemy of the good. Things change. If you’re disappointed that an event isn’t exactly the same as it was 10 years ago, well, I bet you’re disappointed by a lot of things in life. That’s your prerogative, but it’s a rather idealistic and naive one.
For what it’s worth, I still just say, “I’ve been to Burning Man” without qualifying it much. If I’m talking with another burner, then sure, all the usual gripes will come up, like with a family member, that doesn’t mean I don’t love it.
No, it’s not that it changed for me, it’s that the cultural understanding of what “Burning Man” means has changed. I used to brag about it to the uninitiated. Now, I don’t mention it unless someone else does.
It’s not that it was perfect and is no longer, it is that if someone were to discover “Burning Man” now, they would have a very different impression than I did 10 years ago. When I discovered it, as suggested by friends, I thought it seemed quite interesting. Now, someone might ask me, “Why would you ever go to that?” And that would be my reaction, too.
>I prefer the good old days, like 10 year ago
2006, the good old days? You must be new.
New, relatively speaking to many veterans, but I have not gone since it turned into an invitation-only party. After that, it changed dramatically from outside and inside. Common practice now – like bike theft and rape – were the exception “back then.” Not much talk of our camp crowd going back now. Doing things elsewhere.
About to throw away my laptop with the “Burning Man 2006” sticker on it. The only constant is change.
This is most humorous in regards of Decommodificaion LLC, the for profit company registered within 2010, filed to own the trademarks ‘Burning Man’ and ‘Decompression’ in Canada within 2014 in due of
Decommodification LLCa not stated corporation utilized the term ‘Burning Man’ in the manner of ‘Used in CANADA since at least as early as 1999 on services (2).’Napalm Dragon stated
‘Unable to block me from defending myself, I decided to turn it in my favour and completely roasted the lawyer before the Canadian Federal Courts. All the egregious demands faded in the presence of the courts.
I protected some sacred terms, protected Burn BC, and protected myself. …
Anyone is free to oppose the application with CIPO,…‘ – emphasis added
I might imagine the the Decommodification LLC lawyer, perchance paid by the Burning Man Project, turning white within the manner Napalm Dragon stated, in due the judge being of the realisation of this rubbish of Decommodification LLC. At present, no person, or corporation, owns the trademark Burning Man within Canada.
What is the rationale of Decommodification LLC desiring to own the trademark Burning Man(tm) within Canada? Within April of 2011, Larry Harvey stated
In about three years, depending on how the new nonprofit forms up, the LLC will turn over management of Burning Man, while holding onto control of the logos and trademarks for another three years after that, Harvey said. And that’s when the six board members will officially cash out. – emphasis added
How much cash might be paid towards the six of them is due of the trademarks? They refuse to disclose this information, and of their other conflicts of interests, towards donors of cash, stock, art, and labour.
My belief is the board members of the Burning Man Project must act for the benefit of the Burning Man Project, in the place of acting for the benefit of the six owners of Decommodification LLC, and they must require of the owners of Decommodification LLC to delete their request to own the trademarks ‘Burning Man’, ‘Decompression’, and the logo )'( within Canada, in addendum of my belief is the directors of the Burning Man Project, in due of the Burning Man Project owns the Black Rock City LLC, dba Burning Man, then might request, to own these trademarks within Canada.
I will update it when I get home
Much obliged, burnersxxx. In addendum, I was in error in regards to Anon, I was not of the realization of he, or she, was a member of the BMOrg social media crew, prior of your update. I was curious as to the rationale of Anon solely answering queries in a manner favourable to the Borg, and stating rubbish towards the other queries, in a most lawyerly manner.
My belief is the statements on the trademark form of ‘conducting entertainment exhibitions in the nature of art festivals, and of entertainment in the nature of arts festivals‘ are of no importance in regards of the discussions upon the Nevada Live Entertainment Tax in due of arts festivals are not live entertainment, and Burners live entertaining of others are not paid by Black Rock City LLC, or any person, or any corporation.
In addendum, my belief is all comments, including of my comment, in regards of the matter of the Nevada Live Entertainment Tax are most humorous in due of no commenters have viewed the new Nevada Live Entertainment Tax law in due of solely the prior Nevada Live Entertainment Tax law is on the Internet.
Great link, thanks. I guess this is the most relevant part:
NRS 368A.090 “Live entertainment” defined.
1. “Live entertainment” means any activity provided for pleasure, enjoyment, recreation, relaxation, diversion or other similar purpose by a person or persons who are physically present when providing that activity to a patron or group of patrons who are physically present.
2. The term:
(a) Includes, without limitation, any one or more of the following activities:
(1) Music or vocals provided by one or more professional or amateur musicians or vocalists;
(2) Dancing performed by one or more professional or amateur dancers or performers;
(3) Acting or drama provided by one or more professional or amateur actors or players;
(4) Acrobatics or stunts provided by one or more professional or amateur acrobats, performers or stunt persons;
(5) Animal stunts or performances induced by one or more animal handlers or trainers, except as otherwise provided in subparagraph (7) of paragraph (b);
(6) Athletic or sporting contests, events or exhibitions provided by one or more professional or amateur athletes, sportsmen or sportswomen;
(7) Comedy or magic provided by one or more professional or amateur comedians, magicians, illusionists, entertainers or performers;
(8) A show or production involving any combination of the activities described in subparagraphs (1) to (7), inclusive; and
(9) A performance involving one or more of the activities described in this paragraph by a disc jockey who presents recorded music. For the purposes of this subparagraph, a disc jockey shall not be deemed to have engaged in a performance involving one or more of the activities described in this paragraph if the disc jockey generally limits his or her interaction with patrons to introducing the recorded music, making announcements of general interest to patrons, and explaining, encouraging or directing participatory activities between patrons.
(b) Excludes, without limitation, any one or more of the following activities:
(1) Instrumental or vocal music, which may or may not be supplemented with commentary by the musicians, in a restaurant, lounge or similar area if such music does not routinely rise to the volume that interferes with casual conversation and if such music would not generally cause patrons to watch as well as listen;
(2) Occasional performances by employees whose primary job function is that of preparing, selling or serving food, refreshments or beverages to patrons, if such performances are not advertised as entertainment to the public;
(3) Performances by performers of any type if the performance occurs in a licensed gaming establishment other than a licensed gaming establishment that is licensed for less than 51 slot machines, less than 6 games, or any combination of slot machines and games within those respective limits, as long as the performers stroll continuously throughout the facility;
(4) Performances in areas other than in nightclubs, lounges, restaurants or showrooms, if the performances occur in a licensed gaming establishment other than a licensed gaming establishment that is licensed for less than 51 slot machines, less than 6 games, or any combination of slot machines and games within those respective limits, which enhance the theme of the establishment or attract patrons to the areas of the performances, as long as any seating provided in the immediate area of the performers is limited to seating at slot machines or gaming tables;
(5) Television, radio, closed circuit or Internet broadcasts of live entertainment;
(6) Entertainment provided by a patron or patrons, including, without limitation, singing by patrons or dancing by or between patrons;
(7) Animal behaviors induced by animal trainers or caretakers primarily for the purpose of education and scientific research; and
(8) An occasional activity, including, without limitation, dancing, that:
(I) Does not constitute a performance;
(II) Is not advertised as entertainment to the public;
(III) Primarily serves to provide ambience to the facility; and
(IV) Is conducted by an employee whose primary job function is not that of an entertainer.
An exception “…if such music does not routinely rise to the volume that interferes with casual conversation and if such music would not generally cause patrons to watch as well as listen;”
Whoops! Looks like an EDM camp does not fit that exception. Did anyone take decibel readings at the 2015 NV burn?
In actuality, none of it is relevant in due of the link is to the prior 2005 Nevada Live Entertainment Tax law, of 5%, and 10%, levies, which did not apply to Burning Man. My comment was purposed towards stating the new 2015 Nevada Live Entertainment Tax law, of 9% levies, is not on the Internet, in due of Nevada is of the need to update their site, thus all comments in regards to this law are utter rubbish. Might any person have a link to the new 2015 Nevada Live Entertainment Tax law?
My apologies in regards of the confusion. Solely in due of a site appearing to be most official does not mean the site is correct.
The current definition is here, and it’s almost exactly the same as the one quoted above: http://tax.nv.gov/FAQs/Live_Entertainment_Tax___FAQ%E2%80%99s/
There is mention on that page of the 2015 increase to 9%.
JV, that is solely a FAQ, it is not a law.
Unless we think the law itself was substantially changed, as well as the levy, I’m sure these definitions are still relevant.
My belief is the law was substantially changed in regards of whom the law was targeted towards, and we are not of the knowledge of the changes.
My belief is, perchance, statements are within the new law, in regards of paying of entertainers, and the BMOrg, perchance, might be argueing in regards of within 2016, no entertainers are paid in due of their entertaining.
My belief is of my comment, and all other comments, are utter rubbish in due of we do not have a link to the new law.
Ah yes, but for many here, arguing – like flatulence and promiscuity – is its own reward.
I hope you were looking into a mirror while typing that. 🙂
That would make typing hard. I look at the screen and the keyboard. But I suppose it is nice to easily divide the world into mirror-lookers and non-mirror-lookers. :-O
But of the three, promiscuity is the best in front of a mirror.
“…Burners live entertaining of others are not paid by Black Rock City LLC, or any person, or any corporation.”
Except there ARE people paid to perform, DJs come to mind, and Marion even suggested that you assemble funds to pay for a live band in your camp. Also, the fly-in CCamps are charging to come see a performance. Nope, the Borg are cooked on this one, by their own actions declarations, against the spirit of Burning Man ten years ago. That’s why “Burning Man” now means entertainment in the desert. The name is tainted; let them have it.
The group that stages the event does not pay for the entertainment. I’m not sure if that’s good enough to get around this tax, but it seems relevant.
Does burning the man count as entertainment ? Because they do pay for that .
I was going on ABP’s point, not necessarily the NV law. However, one solution is for the Borg to get a NV gaming license. Who knows, the ticket lottery might qualify them! Throw in a few slot machines, and they re good to go. 😉
Reading the definition of “live performance” from the part of the law quoted by burnersxxx, I don’t see where the man burn fits into that. It’s neither music, dancing, acting, acrobatics, animal stunts, athletics, comedy/magic nor DJing. Those are the categories listed in the law. I’m sure a lawyer could prove otherwise in court, though.
It’s 30 minutes of ritual fire dancing and drumming, followed by a pyrotechnics show
In fact this was the main complaint against Dancetronauts – that they interfered with the scheduled live performance by the Fire Conclave , choreographed by BMP Director Crimson Rose.
Pyrotechnics is not included in the definition of live entertainment.
Does the BMORG “provide” the fire dancers in an official capacity? It’s my understanding they are groups organized among the burner community. Also, Crimson Rose may coordinate it, but does she do so in the official capacity of her position on the BMORG board? I don’t think so, but I could be wrong. And I’m fairly certain that the fire dancers are not paid.
Where is there any mention in the law that the “performers” must get paid? I presume the tax levy is on gross performance admission revenues.
They are paid in tickets, if not cash.
Most of the 70,000 audience have purchased tickets to be entertained by a live performance, namely the dancing and pyrotechnic show when the Man burns; the expense of this live performance is paid for by the Burning Man organization in its entirety.
“there are more than 100 camps which provide stages and sound systems for performances, music, speeches, and discussions”– from the Statement of Claim linked to in this story.
The participants pay for these, so maybe they fall into the “patrons entertaining other patrons” loophole.
There are also 60+ interactive artworks, funded at least in part by Burning Man’s organizers, and selected and placed by them. An arts festival featuring interactive art works is how all their intellectual property legalese describes Burning Man. Does “interactive” and “live” mean the same thing? Can something be interactive, and dead?
Most of the honorarium dough goes towards installations, some of which are interactive in that you can climb on them. I don’t know that installations would qualify as live entertainment.
Nomad, that’s true, the law doesn’t mention compensation. My bad.
what vacuous bullshit. you really think bm should ditch its trademarks? fuck is this blog filled with whiny bullshit.
Obviously, you didn’t bother to read the article. The trademark battle was over more than a year ago.
” you really think bm should ditch its trademarks?”
Heavens, NO! “Burning Man” is fair warning that the public best interests are not a concern and entirely secondary to making money as quick as possible off people who want to hang out with the “cool kids.”
“SO… who’s left to protect our culture?”
Us, but we cannot use the term “Burning Man,” nor should we want to at this point. It has been expropriated, but more importantly, tainted by the Borg.
Do these “magic sauce” promises remind you of anyone we know?
https://www.youtube.com/watch?v=qnWbI9RzJqY
https://www.youtube.com/watch?v=W_NxYUpLE6A
https://www.youtube.com/watch?v=pboh1SFk6TM
As to corporate structure games…
https://www.youtube.com/watch?v=9iN_U6TzMEI
And if you need a music video, how about this?…
https://www.youtube.com/watch?v=j5nF5jK_M6A
Are there any Arthur Anderson alumni on the Borg’s team of consultants? Has Larry acquired any property in Paraguay?
“…killers, thieves and lawyers…” Does anyone have a Borg video that might benefit from this music track? Please post a link!
Perhaps that is the ultimate Cacophonist ironic prank big farce test of the Principles by the New Founders.
They create a corporate entity called Decommodifcation LLC to commercially exploit Burning Man(TM). When Burners rise up in outrage demanding that Decommodification is a Principle, not a royalty payment, the true spiritual value of the Ten Principles is shown to the world. The Ten Principles enable Burners to defeat a big, evil corporation trying to commercialize their culture and suck the soul from it.
Then the New Founders step in to save the day, voting unanimously to dissolve Decommodifcation LLC, destroying the Burning Man(tm) corporation and leaving the community of Burners with Burning Man – something run for the public benefit, forever.
John Law’s vision would come true, but in such a weird and convoluted way that the other founders made it seem like their vision and legacy instead.
…Or, it could just be about lawyers, control, money, undisclosed deals, NPD, and so on.
Uninteresting to me, because:
a) they have killed the name “Burning Man,” just as selling commodities can be done under just about any name except “Enron,” or financial services under any name except “Arthur Anderson,” regardless of any formal exchange or rehabilitation; and,
b) it plays into an NPD game of continued but entirely unnecessary manipulative attention to the Borg – they would play it for all it’s worth to the further detriment of the name and the burners.
I would prefer that the Borg continue to wear the “Burning Man” label, just as I wish the Enron and AA people, and the misrepresentations the represent, could still bear that label. As I suggested, it would make it easier to find them. Reclaiming the “Burning Man” label invites ambiguity: do you mean the Bad Enron or the Good Enron? Letting the Borg operate under any other names makes it harder to find them as they might reemerge on the burner scene.
No, a new name is needed, with proper and well-precedented IP protections by those who it represents and not some executive elite. In a way, the Borg started down the right path, but instead of turning the BMP over to the burners, they pulled a Fastow sleight-of-hand, and passed it on to themselves (and their spouses as convenient). Seriously: under what bizarre line of logic do you put husband-and-wife couples on the BoD and exclude any formal representation of those who create the event
Until there might be a clear and controlling connection between the burners and management of the BMP, it is just a facade to placate the masses, get free money, and keep the free lunch of the volunteers. That connection is precedented, as my own experience shows, and could be improved. Developing that structure WOULD be something to brag about and fly first class to promulgate: how to enfranchise and enable volunteers, because PEOPLE make things better, NOT MONEY!
Now it’s just down to semantics over who “won” the case. Burn BC can’t use “Burning Man” or “Decompression” in any of its materials, that’s why the BMORG sued, and that’s all I and most of the people following this care about. As for the cash settlement, it was a dick move by BMORG lawyers probably meant solely to intimidate Burn BC and any other entities who might consider using BM trademarks without permission. It was hard ball, the judge threw it out, but the message was sent.
You can disagree with what the BMORG did (I disagree with them going after a cash settlement) but really, that about sums it up.