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wbai.net reply letter to
Epstein, Becker & Green 2-15-01

BY TELECOPIER: 202-296-2882
February 15, 2001

Tanya Vanderbilt
Epstein, Becker & Green
Suite 700
1227 25th Street, NW
Washington, D.C. 20037-1175

Dear Ms. Vanderbilt:

       I have received your letter dated February 14, 2001. As you know, wbai.net is the internet address of a completely non-commercial web site that publicizes the misconduct of the tyrants whose temporary control of the Pacifica Foundation and of WBAI is under attack in the courts and in forum of public opinion, and provides interested viewers with information about the various way they can join this opposition. The web site also contains extensive criticisms of your law firm for its shameful role in this controversy. I can understand why you would want to help your clients suppress our web site, but the laws you threaten to invoke will not serve you in this regard.

       Quite to the contrary, the cases decided under both the new cybersquatting law and the Lanham Act of which it is a part make quite clear that we are entitled to register and use this domain name, and that it does not violate your client's rights in any way. These laws do not apply to noncommercial web sites like ours, which are created for the purpose of consumer criticism and not competition with your client. Nor is there any possibility of confusion. Both the name and the web site make quite clear that we are fighting for the soul of the Pacifica Foundation, but that the site is not an official site and is not sponsored by the Foundation in any way. Indeed, the existence of that web site belies the claim in your letter that the maintenance of our web site "restricts [y]our client from conducting business on the Internet under its own name." Similarly, nobody who comes upon our web site through a search engine could possibly believe that ours is an official site. The description of our web site that appears in search engines and directories makes clear that we are not the official site.

       Even apart from these issues, if a web user typed wbai.com into her browser, she would get to the web site of a commercial operation, William Byrne and Associates. So far as I am aware, you have not threatened Mr. Byrne with any trademark lawsuits, even though he registered his domain name after we did, and even though his web site does not, unlike ours, carry any disclaimer of affiliation with or sponsorship by WBAI or Pacifica. The notion that your clients have any exclusive right to every domain name containing the letters "wbai" is, in a word, foolish. To the contrary, it is clear that the reason you are threatening legal action against me is because of the content of our site, and because you resent the fact that I am a plaintiff in a lawsuit against Pacifica and you are trying to create some back-pressure against a legal adversary.

       I also note your statement that your client "just" noticed our domain name. In fact, the domain name wbai.net was registered in May 1997. The name has been in active use since that time, and the character of the web site located at that address has not changed since it began – it has always been a critical site run by angry listeners. The web site has been mentioned on Pacifica stations and discussed in leaflets. In short, if you try to claim that your clients only recently became aware of our site or domain name, and or try to seek any court order based on a representation that your clients have a sudden urgency to shut us down, you will be misstating the facts. Indeed, your delay in seeking relief will be just one more argument against your suit.

       In short, the web site and the domain name are protected by both the First Amendment and the laws that you purport to be invoking, and you have no basis for obtaining any injunctive or other relief against us. It would not surprise me if you bring the lawsuit that you threaten, because it is of a piece with other efforts that you and your firm and your client have undertaken to suppress its critics' free speech. My biggest regret about such a lawsuit would be the knowledge that you would not only be milking the Foundation for attorney fees to fund your hopeless lawsuit, but also placing the Foundation at risk for an award of attorney fees that will be awarded after your lawsuit is dismissed. Be assured, therefore, that we will be asking the judge to assess the fees against you and your firm personally.


Sincerely yours,

Patty Heffley

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