Internet Exclusive. (A
shorter version of this piece appears in the January-February 2006 issue
of Union Democracy Review #160)
Whose "IBEW" is it? An Electrician on the
By Matt Noyes
Ed Hill, president of the International Brotherhood
of Electrical Workers, has a problem. IBEW members have been taking their
union's name in vain on the internet, putting its name, initials, logos,
and even its constitution online without the union's permission. In short,
the internet is becoming a powerful new source of strength for union democracy.
Take retired IBEW member Glenn Sand. Inspired by other IBEW rank-and-file
free speech websites ---like "IBEW
MinuteMan" and "IBEWTravelers.net"
--- he launched "MyIBEW.net"
in early 2005.
My IBEW is a large site, with a discussion forum,
information on legal rights (including many pages from the AUD website
and the official IBEW website),
a calendar of IBEW events, and contact information for IBEW officers.
Like many rank-and-file IBEW sites, My IBEW promotes the call for "OMOV"
- One Member One Vote [for direct election of international officers]
-- which Sand says he hopes to see "become a reality... before I
take a clearance to my last 'big one'."
Sand is particularly proud of the online
version of the IBEW constitution which he painstakingly converted
from pdf to html, proofread, and indexed with a searchable format. There
was just one problem with the constitution, he felt: no glossary. Sand
innocently emailed IBEW IP Ed Hill for help:
"I don't know if you're aware of my efforts
to put the IBEW Constitution 'online'... I have found an item missing
that would go miles and miles to make it a more easily understood and
readily referenced document... a 'Glossary of Terms'... what can we
do to rectify this situation?"
Sand's request drew this reply from Hill:
"I appreciate the fact that your efforts are
well-intentioned, but I must inform you that you are neither authorized
nor permitted to publish the IBEW Constitution... the IBEW Constitution,
as well as the words, "International Brotherhood of Electrical
Workers" and the initials "IBEW" are protected under
U. S. and Canadian copyright and trademark laws. ...The International
Brotherhood of Electrical Workers is, and must remain, the only official
source for the IBEW Constitution."
(In a later email Hill took a softer tone, "I
would rather put [the IBEW Constitution] on the IBEW web site... I would
be happy to send it to anyone who requests one... You can rest assured
that we are looking into it.")
For whatever reason, probably because the internet
is becoming so popular an arena for uncontrolled discussion, union officers
feel uncomfortable when union members can refer freely to their union
without permission. (Offline, there has seldom been any problem. Anyone
who has ever attended a Labor Day parade has seen the IBEW's name, initials,
and hand-radiating-electricity logo everywhere: printed on jackets and
t-shirts, stuck to bumpers, painted on motorcycles, and tattooed on shoulders.
IBEW members, like many others, take obvious pride and in their membership
and feel the union's name is theirs to use.)
Like most rank-and-file union webstewards, Sand uses
the union's name and initials in the site's title, domain name, and meta-tags,
and uses IBEW graphics and logos that circulate on the web. "Using
the Union name, etc. is a natural if you're trying to reach people on
the net" he explains. "Search engines are tied to meta tags
and identifying words and phrases... Without these, no one would likely
find your site."
MyIBEW.net's keyword meta
tags. (This bit of code at the top of a webpage helps
search engines find and index a website. It is available for all to
see by clicking "View Source" in the browser menu.) <META NAME="KEYWORDS" CONTENT="IBEW,
I.B.E.W., Constitution, International Brotherhood of Electrical Workers,
LABOR, FORUMS, Information, Communication, message board, LINKS, members,
NEWS, IBEW Jobs, AFL-CIO, Labor Union, union, electrical workers, electrical,
construction, labor, labor laws, local unions, NLRB, nlrb, national
labor relations board, IBEW history, tramp, traveler, boomer, road trash,
FLE, BEE, wobble,">
Sand brought this email exchange to
AUD, and we referred him to Paul Levy, director of Public
Citizen's Internet Free Speech Project and an AUD board member. After
some consultation, Sand decided that the website and the constitution
should stay. He emailed Ed Hill with the good news. The message is worth
a close look.
"Dear Brother Hill:
I am glad to learn of your commitment to make the
IBEW constitution available to anyone who wants a copy. It seems we
share the same goal. I encourage you to post the constitution on the
official IBEW site as soon as possible...
I believe that placing the Constitution on my web
site in searchable format constitutes fair use, and is thus protected
against your infringement claim...
Nor do I agree that using the term "IBEW"
on my web site or as part of the domain name of my web site violates
the trademark laws in any way. I use that term to describe, with complete
accuracy, the subject matter of ... MyIBEW... My web site in no way
suggests sponsorship by the IBEW, and nobody visiting my site could
possibly be confused about whether the IBEW sponsors it. In fact, I
have a very specific disclaimer of IBEW endorsement, and I also provide
a hyperlink to the IBEW's own web site.
As you know, federal law requires you to file a
copy of the IBEW Constitution with the Secretary of Labor, who makes
a hard copy available for anybody who requests one. The only difference
between what I do and what the Secretary does is that, the Secretary
charges per page for copying, but members can see the Constitution in
its entirety absolutely free on my web site... the site is entirely
non-commercial... Moreover, I have added value by making the Constitution
readily searchable. In addition, both the First Amendment and the free
speech provisions of the LMRDA protect my right to do this."
Three important sources of democratic rights online
In explaining his position, Sand cited three important
sources of union democracy rights online: the "fair use" doctrine
that limits copyright and trademark law, the Bill of Rights of Members
of Labor Organizations in the Labor Management Reporting and Disclosure
Act (LMRDA), and the First Amendment to the US Constitution.
Under the Copyright Act of 1976, "the fair use of a copyrighted work...
for purposes such as criticism, comment, news reporting, teaching...,
scholarship, or research, is not an infringement of copyright." Courts
use four factors used to determine whether a use of copyrighted material
constitutes fair use:
1. the purpose and character of the use, including
whether such use is of commercial nature or is for nonprofit educational
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and,
4. the effect of the use upon the potential market for or value of the
This is not the place for a detailed discussion of
Fair Use, but one can see at a glance how a site like My IBEW stands up
against these criteria. According to Public Citizen's Paul Levy, "the
two most important factors in determining fair use - whether the use is
commercial or non-commercial, and whether the use interferes in the copyright
owner's earning a legitimate profit from the work - are clearly in his
favor." Moreover, while Sand reproduces the entire text of the IBEW
constitution - a potential weakness in a fair use claim -- the constitution
is a public document available from the Labor Department. And, importantly,
Sand has added value to the constitution by making it easier to use online.
Nor does trademark law bar Fair Use. According to
a leading source of information about internet law, "a plaintiff
in a trademark case has the burden of proving that the defendant's use
of a mark has created a likelihood-of-confusion about the origin of the
defendant's goods or services." Would a visitor to My IBEW think
she had stumbled on the official IBEW website? We have already seen that
Sand's intent is purely non-commercial. Is he somehow cutting into the
IBEW's "market" by using the union name? On its face the idea
is ridiculous, but Sand includes a very thorough disclaimer just to be
The "IBEW® logo" (and any variants
of it ) and the letters "IBEW®" are registered trademarks
owned by the International Brotherhood of Electrical Workers® and
any use of them on this website is not and does not constitute an endorsement
by the IBEW® for the content of this website and its associated
pages. We have no ties or associations to or with the IBEW® other
than by virtue of the fact that most of our members are in fact dues-paying
members-in-good-standing or retired from the IBEW® and further;
as such we do not claim in any manner to be an agent or 'official' representative
or by any description, official spokesmen of that organization or its'
local unions. The opinions stated herein and published within our pages
are our own and/or those of the individual members and posters and do
not necessarily reflect the official opinions and policies of the IBEW®.
LMRDA Title One Unionists have a particularly important source
of democratic rights online: the Labor Management
Reporting and Disclosure Act (LMRDA), and its Bill of Rights. The
LMRDA's Bill of Rights gives unionists broad protection from union discipline
in retaliation for their speech, safeguarding even speech that would be
ruled slanderous in another context. The same Bill of Rights makes union
constitutions and other information, including financial reports, available
to union members and the public. According to Paul Levy, "the LMRDA
also shows that free speech is particularly important in a labor context
and the Congress recognized that in passing this law. This reinforces
both the copyright/trademark defense and the First Amendment protection."
The First Amendment to the US Constitution
Unionists facing retaliation for their speech or activism often turn to
the US Constitution, "what about free speech, what about the First
Amendment?" But, the US Constitution applies to government action
that restricts free speech - not to action by a union or an employer.
(This is why the LMRDA's Bill of Rights is so important.) Still, in internet
speech cases, unionists can use the First Amendment.
If the IBEW's officers were to try to restrict Sand's
speech by taking legal action their attorneys would have to go to court
to get an injunction. If the court issued an injunction or an award, the
government would be taking action to restrict speech and Sand's First
Amendment rights would kick in. As Sand mentioned in his letter, there
are "decisions of the United States Courts of Appeals, as well as
decisions of federal district courts throughout the country"
that uphold the exercise of First Amendment Rights online.
In sum, says Levy, "this is clearly a case of
fair and permitted use."
Share and share alike
Sand concluded his email to Hill by offering to share his "technically
improved version of the IBEW constitution" with any IBEW officers
and members and asking for suggestions for improvements. He also urged
Hill to add the DOL's handout on "Union
Member Rights and Officer Responsibilities Under the LMRDA" to
the IBEW page. "We can never be "too" informed with regard
to our rights and responsibilities, wouldn't you agree?"
Why do they do it?
AUD has reported on other cases of union officials trying to claim the union
constitution, logo, initials and even the name as their exclusive property.
The UFCW has been particularly aggressive, suing
the operators of two Canadian websites, but has so far had limited
success. (Even in Canada, where copyright and trademark law, and the
lack of a statute like the LMRDA, give plaintiffs advantages.)
Union officials who want to suppress union members'
free speech have been limited by federal law, the LMRDA which provides
clear protection for union members' democratic rights, with a solid base
of decisions interpreting the statute. With the advent of the internet,
however, old problems take on new life. By staking out broad claims to
intellectual property, unions like the IBEW are attempting to win back,
in a new venue, authoritarian powers which they had lost in another.
Sand has yet to hear back from Ed Hill and My IBEW
continues to host the IBEW constitution and other information. "My
website will be there as long as there's an interest from members for
it to remain." (Hill did not reply to requests for a comment.)
Because of the increasing importance of the
internet in union life and the need for information, referrals, and support
for unionists facing retaliation for exercise of their democratic rights
online, AUD will soon launch a new Internet Union Democracy Project. For
more information see www.uniondemocracy.org.
the following credit line on the materials you use: "From the
website of the Association for Union Democracy. www.uniondemocracy.org. Email:
email@example.com. 104 Montgomery Street, Brooklyn, New York, 11225; USA;