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:
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
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:
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?
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
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?
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.
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.
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:
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.
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
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.
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.
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.
[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.