It Doesn't Suck.com
Hank Mishkoff tries hard to convince you he isn't a chronic complainer--some high-minded crank who thrives on conflict and refuses to back down. But the 53-year-old Dallas computer consultant belies that characterization when he directs you to the string of gripe sites he's created on the Web and the string of lawyers who sued him and likely wish they never had.
You type the domain name, TaubmanSucks.com, one of the six "suck sites" he created to criticize The Taubman Co., a Michigan-based shopping mall developer behind The Shops at Willow Bend in Plano. You scroll through the Web site's content, a scathing indictment of the litigation tactics Taubman's lawyers employed to shut up Mishkoff and shut down his gripe sites. You're impressed by the quality of the writing, which considers no detail too trivial to record. And you click through the exhaustive retelling of Mishkoff's precedent-setting court victory as it escalated from a private trademark dispute to a cause célèbre for free-speech advocates.
"The Internet has empowered ordinary people to speak with a global reach," says Cindy Cohn, legal director of the Electronic Frontier Foundation, an advocacy organization promoting Internet-related First Amendment issues. "That empowerment has frightened corporations, who are now overreaching in their attempts to silence critical speech online."
Mishkoff, who can sound as self-effacing as he does self-righteous, says he didn't pick this fight. On the contrary, he claims that in 1999, he created the Web site ShopsAtWillowBend.com as an "unofficial fan site" for the upscale shopping complex after learning that The Taubman Co. planned to open the mall only three miles from his home. "I was excited they were building the mall," he says. "The Web site actually started out as a hobby. I liked the idea of building interactive maps that could guide people to the mall and create discussion groups about people's experience in the mall."
Not surprisingly, Taubman was skeptical of Mishkoff's "community service" motives and instead viewed his ShopsAtWillowBend.com as a commercial rip-off of its own official Web site, theshopsatwillowbend.com. On May 17, 2001, one of Taubman's attorneys, Julie Greenberg (who declined to comment), demanded that Mishkoff remove his fan site and stop using its related domain name. Failing that, she threatened to sue him for trademark infringement and cyber-squatting--a kind of Internet extortion committed by registering someone else's well-known trademark for the purpose of selling the domain name back to the original owner for a profit.
What Greenberg didn't realize was she'd threatened the wrong guy. Rather than shrink from the prospect of litigation, he was incensed by it. "Lawyers have this racket, and it is nothing short of legalized blackmail," he says. "Every time you give in to their threats, you reward them for their behavior and tell them to go do it to someone else."
Before he would consider pulling the plug on his Web site, he demanded that Greenberg provide him with some evidence he was violating the law, which she never did to his satisfaction. Unable--or unwilling--to pay for an attorney, he turned to the Internet to do his own legal research and learned just enough to be dangerous. "Because I was self-employed and had a flexible schedule, I thought I would be able to defend myself," he says. "And the 'net is a stunning resource not only on the law itself, but for people with similar problems who can steer you to resources they have tried."
Mishkoff grew convinced he was not infringing on Taubman's trademark. There was no likelihood of public confusion--the legal standard for infringement--because he'd posted a disclaimer on his fan site that warned viewers it was not the official mall site. Besides, there could be no infringement if his site had no commercial purpose and was simply being offered as a public service. Although his site provided advertising links to his Web design company as well as his girlfriend's custom shirt company, he removed both after Taubman complained the links were evidence his Web site had a commercial use. "I have not gotten a penny from the site and not asked for a penny," Mishkoff says. "I told her [Greenberg] that I was not attempting to sell the domain name for financial gain."
After several months of correspondence hardened their legal impasse, Greenberg filed suit, seeking a preliminary injunction that would shut down the fan site. But that only made Mishkoff mad, and he threatened to retaliate. If Greenberg persisted in suing him, he would create five new domain names including WillowBendMallsucks.com and TaubmanSucks.com and would use them to post details of the abusive litigation tactics to which he believed he was being subjected.
"As an individual with limited resources," he wrote her, "I have found this to be an effective technique when I feel that an organization whose resources are considerably greater than mine is trying to take advantage of me." He had employed similar tactics against one of his clients who refused to pay him and against a Fort Worth nightclub that he felt had treated him unfairly. "The Web is The Great Equalizer," he would later write. "I can tell my story to millions of people and it won't cost me a dime."
Within a week, Greenberg faxed him an offer to settle the case in exchange for paying him $1,000 for all of his site names. He accepted, but the deal blew up partly because Taubman insisted its terms remain confidential. Instead, Mishkoff launched his suck sites and Taubman launched its litigation. Mishkoff now faced a team of swarming lawyers who buried him under piles of paperwork and boxed him in with a series of procedural maneuvers. It didn't help matters that Mishkoff had to defend himself in Michigan, or that the presiding federal judge seemed openly hostile to his side of the case and immediately enjoined him from operating his fan site. But when the judge later forced him to take down each of his gripe sites, he says he was "stunned. It was so obvious an exercise in free speech, I didn't think there was any chance the judge would rule against me. I was wrong."
Somewhat despondent, Mishkoff again retreated to the Internet for help. One of the visitors to a TaubmanSucks.com discussion group recommended he contact Paul Levy, an attorney with Public Citizen, Ralph Nader's public interest law firm. Levy offered some informal advice and later agreed to appeal the injunction pro bono. "The whole case could have been resolved with a little common sense and patience," Levy says. "But there was a chest-thumping young lawyer who felt she didn't have to explain herself to a mere pro se layperson."
If not for the case's First Amendment ramifications, Public Citizen would not have intervened, and neither would the American Civil Liberties Union, which filed a "friend of the court" brief on Mishkoff's behalf. "We became interested because this was the first case to reach a federal appeals court where a large corporation was trying to intimidate its online critic," says Ann Beason, litigation director for the ACLU's Technology and Liberty Program. "How could the lower court possibly think that a site that says 'you suck' is the same thing as your site? There is no way the public would be confused."
On February 7, 2003, the 6th U.S. Circuit Court of Appeals wholeheartedly agreed, vacating the injunction against all five Mishkoff gripe sites. "We find that a domain name is a type of public expression no different from a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman." The court also withdrew the injunction against the fan site because of its unequivocal disclaimer that it was not the "official" mall site.
With little left to litigate, Taubman agreed to dismiss its entire case and attempted to put a favorable spin on the embarrassing outcome. "The Taubman Company is satisfied," stated company spokeswoman Karen MacDonald, "that with the defendant having incorporated a clear disclaimer and having removed all advertising and promotional materials from his Web site, as well as the unauthorized copies of proprietary material, the problems with the confusion have been addressed."
Truth is, Mishkoff addressed those problems at least 18 months before the appellate court reached its decision.
Although he says he was "exhilarated by the decision," all he has to show for it, really, is a handful of suck.com sites that remain up and running. That and the admiration of those who believe in the principle he vindicated. "People like Hank Mishkoff are real heroes," says First Amendment attorney Cindy Cohn. "They are strong in their beliefs. They refuse to get walked on. All I can say is, thank God for the cranks."
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