How To Deal With Cops At Burning Man: 2017

A guest post from Mark Atwood


How to deal with cops at Burning Man (2017 update)

by Mark Atwood

(Feel free to print out, share, and repost. This work is licensed under a Creative Commons Attribution 4.0 International License. I am not a lawyer. This document is not legal advice. If you are ticketed, cited, or arrested, consult with an attorney. )

* Do not consent to a search.

Never consent to a search. Say the phrase “I do not consent to a search.”

The cops are trained to make you flustered and to “take command” of the situation. Or they can be “polite”: “Mind if we take a look around?” Yes, you mind. “I do not consent to a search.”

Even if you have nothing for them to find, always say “I do not consent to a search.”

Never consent to a search of your body, of your clothing, of your possessions, of your car, of your truck, of your trailer, of your RV, of your tent, or of your camp. You especially never consent to the search of anyone else’s property.

They can ask the other people in your group or in your car, not just the driver or leader. “Mind if we take a look?” You should all sing the same song: “I do not consent to a search.”

Even if they threaten you with arrest or if threaten to bring a sniffing dog, continue to say “I do not consent to a search”. Even while they are searching you or your stuff, continue to say it. “I do not consent to a search”.

* Being Questioned.

Cops can ask you questions.

They may say things like “We’re just talking”, or “What do you think of …?”, or “Can you help us out?”

You do not have to answer their questions, and probably shouldn’t.

They can ask you where your camp is, and who you are camping with. You don’t have to answer them, and you probably shouldn’t.

* Recreational drugs.

Never answer any questions about recreational drugs.

Remember, you never take drugs, you never carry drugs, you never supply drugs, you have no idea where to get drugs, you do not want any drugs, and you do not know anyone who does is the basics in learning how to deal with cops and how to get a job.

That includes cannabis in any form, in any amount. Cannabis is still not legal on BLM land, even for medical use. Having a medical card from any state is not a defense. The new Nevada personal use possession law is not a defense.

If you have a legal prescription to a Schedule II drug such as Adderall, Ritalin, OxyContin, and/or Methadone, keep your pills in their correct prescription bottle and locked somewhere safe. You can be charged if you cannot prove you have a legal prescription.

* Do not lead them to your camp.

They may try to make you lead them to your camp.

They can be very commanding and matter of fact about it. They may say “We are going to your camp.” They will make it sound as if you have no choice. You do have a choice, and you are going to chose to not to lead them to your camp. Never lead them to your camp.

If they really really insist on you leading them somewhere, then lead them to a Black Rock Ranger outpost.

* Keep your tent closed.

Always zip your tent closed when you are not in it. If possible, use screens or sheets to block transparent window screens, so there is no line of sight into your tent. You may want to use a luggage lock to lock the zipper of your tent when you are not in it.

If your tent is zipped shut, they are supposed to need a warrant to open it, or they are supposed to need your consent. They probably won’t have a warrant, and you are not going to give them your consent, remember? “I do not consent to a search.”

* Your name and your ID.

If they ever stop you, you do have to tell them your correct “wallet name” as it is printed on your official ID. Cops are uninterested in arguments about “dead names”. Tell them your name as it is printed on your official ID, driver’s license, or passport. You do not have to show them your ID if they ask to see it. You especially do not have to go to your camp to get your ID for them.

If you are a not a US citizen and are visiting on a visa waiver program, you do not have to carry your passport with you. If you are a resident alien on a visa (e.g. you have a “green card”), you do have to carry your green card with you. Sorry about that.

* Being Detained, or “Am I free to go?”.

The magic phrase is: “Am I free to go?”

Keep saying it. As soon as they say “yes”, walk away immediately and without another word. Do not run, just walk.

If they write you a ticket, you must take it. Put it in your pocket, and then you say “Am I free to go?”

If they ever say you are not free to go, you say “Am I being arrested?”. If they say “no you are not being arrested”, you say again “Am I free to go?”. Keep it up as many times as necessary. Yes, it will sound like a stupid kid game, like “stop copying me”, but the game is very real with very real stakes, and this is their game to win, and yours to lose.

* Being Arrested.

If they ever say anything like “you are under arrest”, or ever do anything to make you think you are being arrested, such as them restraining you in any way, you must immediately say the following magic phrase (memorize it!): “I do not consent to any search. I hereby invoke my right to remain silent. I want to speak to my attorney.” And then you SHUT THE FUCK UP.

Do not say anything at all about your arrest or why you may have been arrested until you are talking in private with your attorney. Not with those cops, not with any other cops, not with any onlookers, not with anyone else who was arrested, not with anyone who is being held with you. Not even with your campmates, or with your friends, or even with your family. Even your spouse. Assume the police cars, transport vans, and holding cells are bugged. Assume the cops will lie about what you say to them. Assume everyone you meet from when you are arrested to when you are released will testify against you and will lie about what you say to them. You invoked your right to remain silent. Now use it.

* Alcohol.

The camps with open bars that are giving away booze may ask to see your ID to verify you are older than 21. You don’t have to show it to them, but they don’t have to give you free booze either, and they probably won’t, fearing a bust.

The state liquor cops will be there trying to bust your camp with stings. If you are giving away booze, even if it’s only beer or wine, and the person you are about to give it to looks like they could possibly be under 21, you should verify their age by checking their ID.

Even if your camp is not running a public bar, random people will walk into your camp and ask for booze. You will almost certainly have an under-21 plainclothes liquor cop walk into your camp at least once during the week, trying to sting you. Be aware, an alcohol service bust is an expensive way to ruin your burn for your entire camp.

And even if the person asking for a free drink is not a cop, it’s rude and against the burner ethos to beg for a gift.

* Who Watches the Watchmen?

While the cops are dealing with you, you need to be memorizing the color and design of their uniforms, and if you can, memorizing their name tags. They are supposed to be wearing visible name tags while in uniform. Yeah, right.

As soon as you get away from the cops, go to Center Camp, or to a Black Rock Ranger outpost, and fill out a Law Enforcement Feedback Form and turn it in.

If you personally with your own eyes see the cops detaining anyone, arresting anyone, or searching anyone or anything, it is an act of Civic Responsibility (Principle 7) and a Gift (Principle 2) to Participate (Principle 9) in the burner community to memorize what you can, and then fill out and turn in a Law Enforcement Feedback Form as soon as you can.

* Your camera.

When you see the cops, you may choose to use your camera to record them. The judiciary at all levels has clearly stated that everyone, including you, has the right to record the police, as long as you don’t physically obstruct them. Cops hate it, but too bad.

If the cops tell you to turn off your camera, don’t do it. If they threaten to arrest you for recording, keep recording.

They cannot lawfully order you to stop recording. They cannot lawfully order you or anyone else to delete photos or video. They cannot lawfully delete any photos or video themselves. If they do, they themselves are knowingly breaking the law, and that will be very useful in court.

If you ever see a cop order anyone to stop recording or to delete anything, make sure that goes on the Law Enforcement Feedback Form.

While you are recording them, never get in their way, and stay back at least 35 feet / 10 meters.

* “Undercover” cops.

The cops claim there are “very few” “undercover” cops at the event. This is a very carefully nuanced untruth.

There are cops at the event who are not “undercover” but instead are “plain clothes”. This means that instead of wearing uniforms or visible badges they are instead dressed up to look like burners.

They do not have to tell you they are cops when you ask them. You will not be able to “sense” that they are cops. Some of them have been doing this every year for more years than you have come to the event yourself.

People have been busted by a cop who was wearing only sparkles and a miniskirt.

If someone you do not know asks for drugs or offers to trade you anything for drugs, they are a cop. If you met them this year at this Burn, you do not know them.

If you met these two girls a few days ago looking at art out in deep playa, and they are really cute, and they went out dancing with you last night, and they just suggested that if you can supply some “favors”, you all can “party together” in your tent, they are cops. No, really, yes, she and her girlfriend both are cops, and her coworkers are eagerly standing by to ruin your whole year.

* What if I need “Police Services”?

What if you are lost? Or a camp mate is lost? Or your child is lost? Or you have found a lost child? Or you have found a someone who is injured or who is unable to take care of themselves? What if you are assaulted? What if something has been stolen? What if someone is hurt? What if you are really too high? What if you find someone who is dangerously out of sorts? What if you just can’t even?

Go to a BLACK ROCK RANGER or to an ESD VOLUNTEER. The Rangers or ESD will help deal with the situation, and if the cops are actually needed, the Rangers or ESD can summon the cops and can deal with the cops. If the cops are not needed, then the Rangers or ESD can summon the right help for you.

Know what the Black Rock Ranger uniform is, and how it’s different from the cop uniforms. Rangers wear khaki shirts and khaki hats with the Burning Man logo on their hats, and on their chests, and on their backs, and on their vehicles. ESD have yellow shirts that say “Emergency Services” on them.

Have a great Burn!

2016: How To Deal With Cops At Burning Man

PNN-190-Burning-Man-Police-State-600x400

Some free advice from Mark Atwood, updated for this year. Last year there was a huge spike in arrests, including one for kidnapping. This is not legal advice, please consult an attorney to understand your legal rights at Burning Man – eg Lawyers For Burners


(Feel free to print out, share, and repost. This work is licensed under a Creative Commons Attribution 4.0 International License.)

How to deal with cops at Burning Man, (2016 update)
by Mark Atwood

Do not consent to a search.

Never consent to a search. Say the phrase “I do not consent to a search.”

The cops are trained to make you flustered and to “take command” of the situation. Or they can be “polite”: “Mind if we take a look around?” Yes, you mind. “I do not consent to a search.”

Even if you have nothing for them to find, ALWAYS say “I do not consent to a search.”

Never consent to a search of your body, of your clothing, of your possessions, of your car, of your truck, of your trailer, of your RV, of your tent, or of your camp. You especially never consent to the search of anyone else’s property.

They can ask the other people in your group or in your car, not just the driver or leader. “Mind if we take a look?” You should all sing the same song: “I do not consent to a search.”

Even if they threaten you with arrest or if threaten to bring a sniffing dog, continue to say “I do not consent to a search”. Even while they are searching you or your stuff, continue to say it. “I do not consent to a search”.

Being Questioned.

Cops can ask you questions.

They may say things like “We’re just talking”, or “What do you think of …?”, or “Can you help us out?”

You do not have to answer their questions, and probably shouldn’t.

They can ask you where your camp is, and who you are camping with.
You don’t have to answer them.

Never answer any questions about recreational drugs.

Never answer any questions about recreational drugs.

Remember, you never take drugs, you never carry drugs, you never supply drugs, you have no idea where to get drugs, you don’t want any drugs, and you don’t know anyone who does.

That includes cannabis in any form. Cannabis is still illegal on Federal land, even for medical use.

If you are a Nevada resident in November, remember to vote for the Nevada Marijuana Legalization Initiative.

Don’t lead them to your camp.

They may try to get you to lead them to your camp.

They can be very commanding and matter of fact about it, they may say “We’re going to your camp.” They will make it sound as if you have no choice. You do have a choice, and you are going to chose to not to lead them to your camp. Never lead them to your camp.

If they really really insist on you leading them somewhere, then lead them to a Black Rock Ranger outpost.

Keep your tent closed.

Always zip your tent closed when you are not in it. If possible, use screens or sheets to block transparent window screens, so there is no line of sight into your tent. You may want to use a luggage lock to lock the zipper of your tent when you are not in it.

If your tent is zipped shut, they need a warrant to open it, or they need your consent. They probably won’t have a warrant, and you are not going to give them your consent, remember? “I do not consent to a search.”

Your name and your ID.

If they ever stop you, you do have to tell them your correct “wallet name” as it is printed on your official ID. Cops are deeply and profoundly uninterested in arguments about “dead names”. Tell them your name as it is printed on your official ID, driver’s license, or passport. You do not have to show them your ID if they ask to see it. You especially do not have to go to your camp to get your ID for them.

If you are a not a US citizen and are visiting on a visa waiver program, you do not have to carry your passport with you. If you are a resident alien on a visa (e.g. you have a “green card”), you do have to carry your green card with you. Sorry about that.

Being Detained, or “Am I free to go?”.

The magic phrase is: “Am I free to go?”

Keep saying it. As soon as they say “yes”, walk away immediately, swiftly, and without another word. Do not run, just walk.

If they write you a ticket, you must take it. Put it in your pocket, and then you say “Am I free to go?”

If they ever say you are not free to go, you say “Am I being arrested?”. If they say “no you are not being arrested”, you say again “Am I free to go?”. Keep it up as many times as necessary. Yes, it will sound like a stupid kid game, like “stop copying me”, but the game is very real with very real stakes, and this is their game to win, and yours to lose.

 

Being Arrested.

If they ever say anything like “you are under arrest”, or ever do anything to make you think you are being arrested, such as them restraining you in any way, you must immediately say the following magic phrase (memorize it!): “I do not consent to any search. I hereby invoke my right to remain silent. I want to speak to my attorney.” And then you SHUT THE FUCK UP.

Do not say anything at all about your arrest or why you may have been arrested, until you are talking in private with your attorney. Not with those cops, not with any other cops, not with any onlookers, not with anyone else who was arrested, not with anyone who is being held with you. Not even with your campmates, or with your friends, or even with your family. Even your spouse. Assume the police car, transport van, and holding cells are bugged. Assume the cops will lie about what you tell them. Assume everyone else will testify against you. You invoked your right to remain silent. Now use it.

Alcohol.

The camps with open bars that are giving away booze may ask to see your ID to verify you are older than 21 years. You don’t have to show it to them, but they don’t have to give you free booze either, and they probably won’t, fearing a bust.

If you are giving away booze, including beer or wine, and the person you are about to give it to looks like they could possibly be under 21, you should verify their age by checking their ID. The state liquor cops will be there, trying to bust you with stings.

Even if your camp is not running a public bar, random people will in fact walk into your camp and ask for booze. You will almost certainly have an under-21 plainclothes liquor cop walk into your camp at least once during the week, trying to sting you. Be aware, an alcohol service bust is an expensive way to ruin your burn for your entire camp.

And even if the person asking for a free drink is not a cop, it’s rude and against the burner ethos to beg for a gift.

 

Who Watches the Watchmen?

While the cops are dealing with you, you need to be memorizing the color and design of their uniforms, and if you can, their nametags and their badge numbers. They are *supposed* to be wearing visible nametags. Yeah, right.

As soon as you get away from the cops, go to Center Camp, or to a Black Rock Ranger outpost, and fill out a Law Enforcement Feedback Form and turn it in.

If you personally with your own eyes see the cops detaining anyone, arresting anyone, or searching anyone or anything, it is an act of Civic Responsibility (Principle 7) and a Gift (Principle 2) to Participate (Principle 9) in the burner community to memorize what you can, and then fill out a Law Enforcement Feedback Form.

Your camera.

When you see the cops in action, you may choose use your camera to record them. The judiciary at all levels has clearly stated that everyone, including you, have the right to record the police, as long as you don’t physically obstruct them. Cops hate it, but too bad.

If the cops tell you to turn off your camera, don’t do it.

They cannot lawfully order you to stop recording, they cannot lawfully order you to delete photos or video, and they cannot themselves lawfully delete any photos or video. If they do any of these things, they themselves are knowingly breaking the law, and that will be very useful in court. If they threaten to arrest you for recording, keep recording.

If you ever see a cop order anyone to stop recording or to delete anything, make sure that goes on the Law Enforcement Feedback Form.

While you are recording them, never get in their way, and stay back 35 feet / 10 meters. That’s tazer range.

“Undercover” cops.

The cops claim there are “very few” “undercover” cops at Burning Man. This is a very carefully nuanced untruth.

This art car was revealed to us in 2013 by a whistleblower, as full of undercover cops.

This art car was revealed to us in 2013 by a whistleblower, as full of undercover cops.

There are cops at the event who are not “undercover”, but instead are “plain clothes”. This means that instead of wearing duty uniforms and visible badges, they are instead dressed up in costume to look like burners.

They do not have to tell you they are cops when you ask them. You will not be able to “sense” that they are cops, until they bust you. Some of them have been doing this every year for more years than you have come to Burning Man yourself.

People have been busted by a cop who was wearing only sparkles and a miniskirt.

If someone you do not know asks for drugs or offers to trade you anything for drugs, they are a cop. If you met them this year at this Burn, you do not know them.

If you met these two girls a few days ago looking at art out in deep playa, and they are really cute, and they went out dancing with you last night, and they just suggested that if you can supply some “favors”, you all can “party together” in your tent, they are cops. No, really, yes, she and her girlfriend both are cops, and her coworkers are standing by to ruin your whole year.

What if I need “Police Services”?

What if you are lost? Or a camp mate is lost? Or your child is lost? Or you have found a lost child? Or you have found a lost fellow burner who is injured or is unable to take care of themselves? What if you are assaulted? What if something has been stolen? What if someone is hurt? What if you are really too high? What if you just can’t even?

Go to a BLACK ROCK RANGER, or to a ESD volunteer or station, not to a cop. The Rangers or ESD will help deal with the situation, and if the cops are actually needed, the Rangers or ESD can summon them and can deal with them. If the cops are not needed, then the Rangers or ESD can summon the right help for you.

Know what the Black Rock Ranger uniform is, and how it’s different from the cop uniforms. Rangers wear khaki shirts and khaki hats with the Burning Man logo on their hats, on their chests, on their backs, and on their vehicles. ESD have yellow shirts that say “Emergency Services” on them.

Have a great Burn!

Who Won, Who Lost, What’s Fact, and What’s Propaganda? – Decommodification LLC’s First Legal Stoush [Updates]

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.”

a_stickler_for_detail_by_abecedarianjameson-d6wjkiqFair 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:

[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:

Screenshot 2016-01-23 09.47.22

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

Screenshot 2016-01-23 10.48.53

 [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:

Screenshot 2016-01-23 10.46.36

[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)Screenshot 2014-12-05 19.38.09

In this case, “Burning Man” (speaking under cover of anonymity about their own story) said:

Screenshot 2016-01-23 10.14.26

“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:

Screenshot 2016-01-23 12.55.54

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.

Screenshot 2016-01-23 11.08.04

Which does call into question Napalm Dragon’s tale of a lawyer cowering in defeat…

Screenshot 2016-01-23 11.53.16

…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:

Screenshot 2016-01-23 11.46.58

Perhaps it was related to this session on January 12:

Screenshot 2016-01-23 11.49.35

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

burn bcThere 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”.
The reason I WON is clearly explained to anyone willing to read and understand the following in it’s entirety (every single word), and really think about it; not like a game of Checkers, but like a game of Chess. Or for the gaming enthusiasts who even get the g105 gaming keyboard, like a game of GO.
The American corporation Decommodification LLC can say whatever they please, their owners have been doing it for years. I’ve talked to university graduates who’s thesis papers about “this culture” were rejected by professors as outright garbage for badly sourcing this kind of propaganda almost word for word; as essentially lazy “research”.
I’ve read some it myself and it’s rambling dribble, with no foundation on anything substantial.
A PR campaign by a Privately Owned American Corporation is just Marketing spin. It’s Propaganda (Literally) If that’s anyones source of information, they just want to believe what they want to believe and nothing will change the washed brains of a “Contractually Obliged Brand Cult” who want to freely exploit the goodwill of many beautiful people, while raking in millions for other people taking advantage of them.
This is the end game.
Any deviation from this PR story is grounds for ostracization from “the community”. (AKA) that which is “controlled directly or indirectly” by Decommodification LLC. 
It’s none of my business.
I don’t care.
(Metaphorically Speaking)
I held a window open for other people as long as I could, and when that opportunity passed for them, I took the exit I planned all along and leveraged it for what I wanted, to begin with, and left. The culture is gone from this meaningless name, and I’m following it out the window.
The door is closed, the window shut, and the idiots who signed contracts and gave away their personal rights are trapped in a room slowly suffocating on the rotting stench of this decrepit corpse, to the bitter end.
I’m walking in the open fields in the sun.
At peace, with no obligations whatsoever to any of this.
My conscience clear.
** Now regarding the less metaphorical realities of how the Federal Court works and WHY I WON.** 
Anyone who tries to convince you otherwise is either lying to you, or has no idea what’s happening.
Something like 98% of cases in Canadian Federal Courts are settled out of court, and never go to trial. So a smart person works proceedings like a Chess Game, NOT Checkers. Or for anyone who’s really into ancient gaming; as an Atari in Go.
In other words, if all you see is one chess match, you’re missing everything else that matters.
I forced Decommodification LLC to make some serious concessions, that are not in the public record, and are by no means confidential. I am in no way bound to any “Gag Agreement”, and never conceded a key detail that will always remain my Trump Card if anyone hassles me in the future.
I hold these papers in my hand right now, and only a few people clearly understand exactly why this is so significant.
If you remember, at the outset of all of this, I made it extremely clear I did not want “Burning Man”. Neither did Burn BC. This was my Atari.
My goal was to offer it to Canadians and walk away and essentially be done with it as a mutually respectful gift to the culture I nurtured here in Canada, before it was ever even vaguely associated in any way with a stick man.
But, one woman called it “My mark like NIKE” in a phone call to me on April 1st of 2013, and proceeded to call this a “Battle”, turn this into a “War” and claim “The Community” as her pawns in this sadistic game of hers. As she put it, “Three little dots”, on her game board.
Insignificant little dots, coloured red, yellow, and blue; condescending little details in what I later realised was an epic End Game in a 20 year plot.
So, you see, I leveraged the arrogance of a highly vengeful woman who walked right into my Atari, and went after me personally.
Once able to defend myself, I moved proceedings one motion away from a complete dismissal on grounds that could have brought the entire Decommodification LLC plot crashing to the ground…
My Atari was complete.
I forced concessions from a literally cowering and slightly terrified lawyer (working for the largest law firm in Canada, representing a multi million dollar privately held American corporation) who’d been caught essentially misleading the Court based on a weak (at best) case, and I walked away with what I wanted all along.
… and as a bonus, my pawn.
Burn BC; completely intact.
My prize, the concessions in my agreement.
In writing, legally binding.
Not a nickle paid to me, not a dime paid to Decommodification LLC.
I won, with a clear conscience.
Now they can fuck off and leave me alone, as I requested in 2013.
They can say whatever they like, spin it however they please, outright lie at this point, and it doesn’t matter to me.
I won.
I’m at peace, my conscience is clear, and my art is mine; that art being an expression of the culture that gave a little bonfire in Nevada some meaning for a few years.
I’m going to explore the next paradigm without this epicly obnoxious shadow of Ember Dude looming over me, my art, my family, and my culture.
With Peace,
I put down the gift I held with curiosity, an enigma in a pandora’s box, waiting for anyone willing to see it.
I’m going to literally play with my three year old son now, and keep teaching him chess, so he can one day learn to play Go; A Japanese game I played in the hills of Hawaii at the age of 9, while living on a property next door to Terence McKenna.
With Love,
Bhak Jolicoeur (AKA) Napalm Dragon
Artist, Impresario, and Sacred clown.
[Source: Facebook]

 

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?

 

business-shark

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.

Screenshot 2016-01-23 13.19.23

 

 


[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.

what you can buy at burning man

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.

Screenshot 2016-01-25 19.13.51

Suing For Your Supper [Update]

Thanks very much to Burner ShaggyDog for this guest post about some of the legal issues surrounding the recent Quiznos parody.


The BMOrg has put out quite a bit of bluster regarding a certain ad for a sandwich company – one that pokes fun at Burning Man with a satirical caricature of some aspects of the culture (mainly the ones that have received the most attention lately – it comes not even close to capturing the full gamut of Burning Man). And though BMOrg’s intent may be to protect the culture from commodification, their PR department has come off looking pretty foolish for their efforts, with outlets such as the WSJ and the Young Turks satirizing the Borg’s response to this satire. Their response has also had the side effect of generating yet more free publicity for the very ad they were trying to squelch.
.
Whether you love the ad or hate it (I thought it was on point and hilarious), it’s pretty hard to argue that this isn’t Commodification in some form. The more difficult question is what (if anything) should the BMOrg, and we burners more generally, do about it?
.
BMOrg has opted for the route of legal sabre-rattling, but as Thomas Schelling taught us in his masterpiece ‘Strategy of Conflict’, for a threat to be effective, it must be a credible threat. How credible is the BMOrg’s implied threat within its Cease & Desist letter to Quiznos? Let’s take a look at what the law says.
.
Intellectual “Property” – Trademarks and Copyrights
Intellectual property laws bestow certain rights on creators and persons to control how their creations may be used. In the USA, thanks to the American Enlightenment principles of the founding fathers, these rights are based in a utilitarian philosophy which recognizes the tradeoff between encouraging the creation of good works, and limiting freedom of expression. This is interesting, because we can recognize similar tradeoffs between conflicting (10) Principles – for example Radical Expression vs Civic Responsibility, or even vs Decommodification.
.
IP protections includes copyright, trademarks, patents, trade secrets, and a few other esoteric and less common constructs such as design patents and character rights. But the only protections relevant here are trademarks  and (maybe!) copyright.
.
Copyright law exists to encourage the creation of art and culture, by granting their creator a limited monopoly to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. The ‘limited’ part of the monopoly is important, and includes not only a time limit, but exceptions such as Fair Use.
.
Trademark law, at least in theory, is primarily about preventing consumer confusion and protecting the consumer. It is helpful both to the business and to consumers to know that when they buy Spanky®’s meat tubes they are getting meat tubes that have in fact been produced by Spanky®, and not by an inferior competitor that may be using hazardous ingredients, or extruding them from a nearby communal Fleshlight.
.
The Burning Man trademark
The BMOrg (or rather, the Orwellian-named Decommodification LLC) controls the trademark for “Burning Man”, allowing them to prevent others from attaching that name to their products and services to prevent confusion and protect their brand. But that isn’t a free rein to control any and every use of a trademark. Imagine if you had to seek permission every time you said to your friend “I’ve got an idea for an art project. Wanna go and photocopy our butts at the local Kinkos?”. Mayhem would ensue. It’s pretty hard to talk about visiting Kinkos without using the word Kinkos. And in fact this situation is covered under existing trademark case law – it is called “nominative fair use” and applies when you are using the trademarked name of a thing to refer to it accurately, there’s no other simple way to refer to it, and you do not imply any endorsement by the trademark owner. These all apply to the Quiznos ad, and so BMOrg’s trademark case is looking pretty anaemic.
.
Add to that the fact that parody is typically afforded even more leeway in fair use rulings, and it’s clear the Borg’s case never really had legs. An instructive example is when Mattel sued MCA records, the label responsible for Aqua’s ‘Barbie® Girl’, over their use of the trademark. The case dragged on over 3+ years and several appeals, but Mattel lost every one of them. So the BMOrg were shooting blanks in their C&D, and one wonders what they hoped to achieve?
.
The Embrace copyright
Matthew Schultz has also written some heartfelt posts about the exploitation of his work – the Embrace sculpture – in this ad. I really feel for Matthew, and Embrace was an incredible achievement, one that it is hard not to feel is cheapened by such a use. But the law is likely not on his side, and even less on that of the BMOrg. In fact, BMOrg don’t even have standing to sue over the inclusion of Embrace in the ad, because they don’t own the copyright – the Art Grant contract gives them only a perpetual unlimited license, which does not provide the right to sue.
.
Matthew could assign them co-ownership so they could sue on his behalf, but that would not achieve much either, because the real problem here is that the use of the copyrighted Embrace design and image here is very likely protected by Fair Use.
 .
Copyright fair use is determined by a four factor test – Purpose and character of the use, Nature of copyrighted work, Amount and substantiality of portion taken, and Effect of use on potential market.
.
Though the commercial nature of the work would go against a fair use finding on the “purpose and character of use” factor, the other three factors are pretty clearly in Quiznos’ favour.
.
The use of the work was not only transformative, but parodical (and parody is seen as an exemplary fair use). The substantiality also favors fair use – it was shown incidentally in the background for a split second only. And the effect on the potential market is also in favor of fair use – as there is no secondary market for a work that you burn. It is a somewhat bitter irony that the Decommodification principle ensures that the market for the work was never really a motivation to begin with.
 .
So on both the trademark and copyright aspects, this is a very tough case for anyone wishing to sue Quiznos. So what should the BMOrg have done?
.
The Streisand Effect and the Internet Outrage Machine
Perhaps confusingly, I think the answer is probably very little. The BMOrg doesn’t have the ammunition it needs to make credible threats to Quiznos. And on the internet things like threatening to sue (which is all a C&D letter really is) have a terrible habit of backfiring.
.
Trying to bury something on the internet is basically impossible – as EFF founder and long-time burner John Gilmore said “The Net treats censorship as a defect and routes around it“. Without the ability to censor, pushing back on something has the opposite effect to that desired –  it draws more attention to it! This is the infamous Streisand Effect, named for the incident in which Barbara learnt this valuable lesson. With so many tech-savvy folk at the Burn and in burner circles, you would expect the Borg to know better.
 .
So the best course of action for the Borg was probably to ignore this and let it blow over. Maybe write a little blog on Voices of BM, but don’t go threatening anybody, play it down, and ignore these tacky fuckers commodifying our Burn. Expressing any kind of moral indignation is a lightning rod on the internet – outrage attracts eyeballs, and with them clicks and advertising dollars. So much for Decommodification.
.
Community Solutions?
So what is left to us? We can’t rely on some omnimpotent (sic) authority figure to solve this problem for us. Is there anything we as a community can do?
 .
Sure. Don’t buy Quiznos. Don’t share the ad. That’s easy right there.
.
More challenging and more risky would be to hijack their message, and make it work against them. There are some precedents to hijacking PR messages and turning them against their creators. Anonymous is a master of this sort of thing with its constant fuckery with online polls and the like. But even arguable failures like Fitch The Homeless are instructive here. The notion is to co-opt in turn those that are co-opting our culture, and do things they don’t like with their brand. On the FB Victor suggested re-purposing Quiznos subs as buttplugs – this is exactly the kind of message hijacking that might work.

victor facebook suggestion

This can easily backfire though, especially to the extent that this is a brand where “there’s no such thing as bad publicity” is true (the Kardashians spring to mind).
.

If we really are impotent to fight this sort of commodification, we might have to just be happy with building our own communities and living within them, and not paying too much attention to this sort of exploitation by external actors. Really that’s what we’re already doing.


Burners.Me:

Just to add further to ShaggyDog’s excellent commentary. There has been an attempt to “fuck with the fuckery” – replacing the audio in the Quiznos ad with “eat a shit sandwich”. This is a more “Burnery” approach, IMO.

.

In the final Supreme Court ruling on the Mattel vs RCA Barbie Girl case, the judge ordered the parties “just to chill” . Mattel eventually chose to embrace the Aqua song, using the music in official Barbie TV advertising in 2009.

 

.

Uproxx in an article titled Our Nonsense Is Serious! Burning Man May Sue Over Legitimately Funny Sandwich Ad compares the situation to the Book of Mormon. Rather than suing the South Park guys behind the spoof, the church embraced them – advertising in the musical’s playbook, and even sending busloads of churchgoers to Broadway to see the show (if you’re lucky enough to have seen it, you’ll know that it’s harder on the Africans than it is on the Mormons).

.

Other Burners have raised the example of another recent parody “Burning Man – The Musical!”, which BMOrg seem to have allowed so far.

.

This article at TechDirt Myth Busting – Yes, An Advertisement Can Be Fair Use Parody has some good information and further links.

 

A few choice comments from Reddit:

HotterRod:

The primary protection for trademarks is to prevent consumer confusion. No one is going to confuse a sandwich with an arts festival, so that’s obviously not in play here.

The secondary protection is dilution of the brand (in this case tarnishment: “association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark”), which is covered by the Trademark Dilution Revision Act of 2006. Section 3.b & 3.c explicitly exempts news and noncommercial use from charges of dilution, so the rest of the act covers commercial use. The Act section 3.a.ii defines fair use as:

identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

Personally I think Quiznos’ ad is obviously fair use and the Org’s purpose here is to scare off other people who might make parodies and don’t have a legal team to defend them. It’s sad that the legal system works that way. 😦

Deckard256:

I think the bmorg is gonna have a hard time on this, and quite frankly I think it’s a bit hypocritical to piss on Quiznos over it. How many parodies of business has burning man hosted over the years? Wall Mart, Costco, Starbucks, jiffy lube, and Wall Street are just a few of the brands major theme camps have parodied. The org should lighten up a bit. If a samich shop can make everyone giggle like this, then maybe they’re saying something about the event that everyone else seems to be clued into. 

Larry Harvey: (not on Reddit) 

“Gift giving networks can produce massive amounts of social capital, and the rate of return on social capital is a lot better than the rate of return on normal capital investment in the market world”

ABurnGuy:

They took that social capital right to the bank!

And now with the hordes, sufficiently convinced by what they read in the brochure about ‘decommodification’, bring the pitchforks out whenever it isn’t Blessed By Larry. Of course they don’t seem to care about it if Larry Likes It.

A dumb internet video? We need the lawyers, they’re profiting off of our brand!

People running for-profit camps at Burning Man itself, directly profiting off of the brand and experience? Oh, just have some token effort to pretend you’re a “theme camp,” it’s okay, commodification is a spectrum!

(Spark BluRays on sale near the door. Make sure the last one to leave turns out the light.)


Now that BMOrg have come out and said “People at our office thought the video was clever and funny” and “we are not threatening to sue Quiznos”, I wonder if the Burnier-Than-Thous will change their tune also? Burning Man was never supposed to be serious.


 

[Update 9/17/15 7:34am PST]

The Voices of Burning Man have finally spoken. It seems they have a brilliant sense of humor, and really enjoyed this funny joke. It’s just, they have to stick up for the poor artists who got no compensation for someone else making money from their work.

As creative and funny as it was (we had a good laugh, we’ll admit), clever unfortunately doesn’t trump our commitment to protecting our community from commercial exploitation. We’ve been fielding anguished calls and emails from participants and horrified artists whose creations were used in the video without permission, a number of whom who have issued take-down requests of their own accord. We can laugh at ourselves. But we’re not laughing when a corporation exploits the artwork of others under the guise of poking fun at our event.

Brings to mind Green Tortoise, the exception that proves the rule of how they protect our community from any commercial exploitation.

Halcyon aka Pink Jesus has weighed in on QuiznoGate (I was calling it SandwichGate to avoid promoting the brand). Facebook users can follow his new “happy happy joy joy” page Pink Hearted at Burning Man and Beyond. Even BM’s biggest fan is outgrowing the NV Burn…

 

Commodifying Decommodification

A guest post from our reader Pantsless Santa. It’s an eye-opener! The desire of these people to laugh at the very principles they created, and told us we had to live by, seems to know no bounds.

image: RK Richardson/Flickr (Creative Commons)

image: RK Richardson/Flickr (Creative Commons)


 

By Pantsless Santa:
This belongs in the totally effin’ hilarious category more than anything else:
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Decommodification LLC is actually trying to register the word “decommodification” as a trademark itself, and they’re doing it in the most hypocritical and illogical way possible.
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Trademark registrations and applications are all public record. If you search for “Decommodification LLC” on the Patent and Trademark Office’s search system, “TESS,” you can see all of the trademarks that that the LLC owns and has applied for.
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 decommodification1
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There are the usual suspects “Burning Man,” “Decompression,” and “Black Rock City.”
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Flambe Lounge,” which dates back to 2003, is probably some old business idea that never panned out.
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Burning Man Brew” was originally registered by a brewer and later purchased (I suspect) by the LLC, likely because it would have been more expensive to fight over it in court – nothing indicates that the BMOrg intends to get into the speciality beer business.
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Black Rock Gazette” is registered by the BMOrg (Black Rock City LLC). Nothing is currently registered by Larry, Michael, or Marian.
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Finally, the LLC has applied to register “Decommodification.”
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I’ll stop for a minute here to explain a couple of important things about trademarks. Trademarks are very different than copyrights. You can’t simply pick out a word or phrase or logo (a “mark”) and get the rights to it.
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To oversimplify greatly, you can’t register or protect a mark unless it’s associated with a particular good or service (defined broadly), and has actually been used publicly to promote or sell the thing it’s associated with. That last part is called “use in commerce.” People often get tripped up over “use in commerce,” because in normal human language it looks like it means the same thing as “used commercially.” It doesn’t. It’s a legal term of art meaning something like “used to promote or sell any type of good or service for any reason whether or not for profit.” This keeps companies from simply registering all of the words they think that they or their competitors might use and squatting on them. They can only register marks they’re actually using.
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To oversimplify again, you can only protect or register a mark in order to keep people from using your name (or brand or logo) on their products in a way that might fool consumers.
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So, Decommodification LLC applied to register the mark “Decommodification.”
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Thinking back to the above, you might ask yourself: “What the hell good or service could Larry & Co. POSSIBLY plan to use this for?” Well, they put it right in the application: “Commercial administration of the licensing and sublicensing of intellectual property by others.”
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 decommodification2
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Now, before anybody (*cough*) gets started with grand theories about what the LLC might be planning with this, I want to share my opinion that absolutely nothing sinister or underhanded is going on here. “Commercial” is still being used as a term of art as above, and the rest of the sentence simply describes exactly what the LLC does. In other words, the actual purpose of this trademark application is to prevent somebody else from opening up their own Decommodification LLC or Decommodification Inc. or Decommodification Gmbh that does the same thing as this one.
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This trademark has a very narrow reach. Remember, a trademark must be associated with a particular good or service. This wouldn’t stop any of us from calling our toilet-removal businesses “Pantsless Santa’s De-Commodeification” or whatever. So why bother bringing it up in the first place? Like I said above, it’s effin’ hilarious! To spell it out:
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Larry Harvey & Co. are attempting to define the word “Decommodification” as “Commodifying intellectual property.”
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Decommodification LLC filed their application for “Decommodification” on March 26, 2012. The application is still being processed because the LLC has not, even after multiple extensions, been able to provide evidence that they have actually used the word “Decommodification” in “commerce.”
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Honestly, there is no reason for them to actually register “Decommodification.” Who else in the world would ever create an intellectual property licensing company by that name? The only reason anybody might do that is to poke fun at the BMOrg/Decommodification LLC: and a trademark does not protect you against parody.
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You can check the history and status of the trademark application here: http://tinyurl.com/mojkq47
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Pantsless Santa, Esq.
General Counsel
Portland Cacophony Society