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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 internet

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.

Fair Use
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 purposes;
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 copyrighted work.

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 BitLaw, 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 sure:

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 by numerous 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.

Articles on the IBEW:
IBEW president Hill upholds Canadian member's rights
IBEW local fights employers' "right to reject"

Electricians press IBEW to defend union hiring halls
Whose "IBEW" is it? An Electrician on the internet
2KB of free speech? ACLU & Public Citizen sue in IBEW Local 46 election
IBEW roundup: electricians rally at international headquarters, a message from Herman Benson, and IBEW officers thumb noses at convention decision
Electricians to Rally to Take Back the Union.
New Voices at AUD construction trades conference.
IBEW delegates demand due process in construction hiring.
Snapshots from the IBEW

Articles on the internet and union democracy:
Appeals court backs union curbs on the internet
Free Speech in the SEIU and MEBA?
Union officers uncomfortable with online free speech
Surrendering to the internet: Democrats in spite of themselves?

IBEW president Hill upholds Canadian member's rights
Union officials "condone and endorse" attack on member's internet free speech rights
Round 2 in the internet battle in AFSCME DC37
In AFSCME DC37 - A round in the internet battle
Danger of democracy on the Internet? Kill it!
Whose "IBEW" is it? An Electrician on the Internet.
Results of the 2005 AUD Best Rank-and-File Website Contest
Union democracy online survives two lawsuits
Online Guide: build an effective rank-and-file website
SEIU Pulls plug on "Labor's Future" discussion
52 Playing cards = fearsome "Local 52"
Using the Internet for Union Democracy

AUD's Best Rank-and-File Websites of 2004
Matt Noyes on AUD and the Internet
2KB of free speech? ACLU & Public Citizen sue in IBEW Local 46 election
Making a splash: SEIU's Unite to Win and the "free and open debate" on Labor's future

SAG officers unnerved by actors' internet free speech

Free speech irritates UFCW

Free speech in NWU
IATSE 600: Internet democracy triumphs over super centralization
Cyber-democracy: your legal rights online.(handout)

See also:
AUD's 50 Guidelines for building an effective rank-and-file website, and the sample homepage.
The labortech tag on del.icio.us.

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