Who Won, Who Lost, What’s Fact, and What’s Propaganda? – Decommodification LLC’s First Legal Stoush [Update]

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:

Update 1/21/16:

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 meaning 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

 [Source]

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:

[Source]

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?

[Source]

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

There is a lingering question that has been posed to me in light of some PR published on a website in the USA, regarding why “I WON”.

The reason I WON is clearly explained to anyone willing to read and understand the following in it’s entirety (every single word), and really think about it; not like a game of Checkers, but like a game of Chess. Or for the gaming enthusiasts, like a game of GO.

The American corporation Decommodification LLC can say whatever they please, their owners have been doing it for years. I’ve talked to university graduates who’s thesis papers about “this culture” were rejected by professors as outright garbage for badly sourcing this kind of propaganda almost word for word; as essentially lazy “research”.

I’ve read some it myself and it’s rambling dribble, with no foundation on anything substantial.

A PR campaign by a Privately Owned American Corporation is just Marketing spin. It’s Propaganda (Literally) If that’s anyones source of information, they just want to believe what they want to believe and nothing will change the washed brains of a “Contractually Obliged Brand Cult” who want to freely exploit the goodwill of many beautiful people, while raking in millions for other people taking advantage of them.

This is the end game.

Any deviation from this PR story is grounds for ostracization from “the community”. (AKA) that which is “controlled directly or indirectly” by Decommodification LLC. 

It’s none of my business.

I don’t care.

(Metaphorically Speaking)

I held a window open for other people as long as I could, and when that opportunity passed for them, I took the exit I planned all along and leveraged it for what I wanted, to begin with, and left. The culture is gone from this meaningless name, and I’m following it out the window.

The door is closed, the window shut, and the idiots who signed contracts and gave away their personal rights are trapped in a room slowly suffocating on the rotting stench of this decrepit corpse, to the bitter end.

I’m walking in the open fields in the sun.

At peace, with no obligations whatsoever to any of this.

My conscience clear.

** Now regarding the less metaphorical realities of how the Federal Court works and WHY I WON.** 

Anyone who tries to convince you otherwise is either lying to you, or has no idea what’s happening.

Something like 98% of cases in Canadian Federal Courts are settled out of court, and never go to trial. So a smart person works proceedings like a Chess Game, NOT Checkers. Or for anyone who’s really into ancient gaming; as an Atari in Go.

In other words, if all you see is one chess match, you’re missing everything else that matters.

I forced Decommodification LLC to make some serious concessions, that are not in the public record, and are by no means confidential. I am in no way bound to any “Gag Agreement”, and never conceded a key detail that will always remain my Trump Card if anyone hassles me in the future.

I hold these papers in my hand right now, and only a few people clearly understand exactly why this is so significant.

If you remember, at the outset of all of this, I made it extremely clear I did not want “Burning Man”. Neither did Burn BC. This was my Atari.

My goal was to offer it to Canadians and walk away and essentially be done with it as a mutually respectful gift to the culture I nurtured here in Canada, before it was ever even vaguely associated in any way with a stick man.

But, one woman called it “My mark like NIKE” in a phone call to me on April 1st of 2013, and proceeded to call this a “Battle”, turn this into a “War” and claim “The Community” as her pawns in this sadistic game of hers. As she put it, “Three little dots”, on her game board.

Insignificant little dots, coloured red, yellow, and blue; condescending little details in what I later realised was an epic End Game in a 20 year plot.

So, you see, I leveraged the arrogance of a highly vengeful woman who walked right into my Atari, and went after me personally.

Once able to defend myself, I moved proceedings one motion away from a complete dismissal on grounds that could have brought the entire Decommodification LLC plot crashing to the ground…

My Atari was complete.

I forced concessions from a literally cowering and slightly terrified lawyer (working for the largest law firm in Canada, representing a multi million dollar privately held American corporation) who’d been caught essentially misleading the Court based on a weak (at best) case, and I walked away with what I wanted all along.

… and as a bonus, my pawn.

Burn BC; completely intact.

My prize, the concessions in my agreement.

In writing, legally binding.

Not a nickle paid to me, not a dime paid to Decommodification LLC.

I won, with a clear conscience.

Now they can fuck off and leave me alone, as I requested in 2013.

They can say whatever they like, spin it however they please, outright lie at this point, and it doesn’t matter to me.

I won.

I’m at peace, my conscience is clear, and my art is mine; that art being an expression of the culture that gave a little bonfire in Nevada some meaning for a few years.

I’m going to explore the next paradigm without this epicly obnoxious shadow of Ember Dude looming over me, my art, my family, and my culture.

With Peace,

I put down the gift I held with curiosity, an enigma in a pandora’s box, waiting for anyone willing to see it.

I’m going to literally play with my three year old son now, and keep teaching him chess, so he can one day learn to play Go; A Japanese game I played in the hills of Hawaii at the age of 9, while living on a property next door to Terence McKenna.

With Love,

Bhak Jolicoeur (AKA) Napalm Dragon

Artist, Impresario, and Sacred clown.

[Source: Facebook]

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”?

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?

Court Documents:

List of Official Court Information, including key dates and filings

19 January 2016 Judgement Against Defendant

13 January 2015 Decommodification LLC vs Burn BC Arts Cooperative Order and Reasons

6 November 2014 Order Denying Motion to Represent Burn BC

[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.