“Defcad stands against artificial scarcity, intellectual property, copyright, patentable objects, and regulation in all its forms.” – Cody Wilson, Promo Video, 2013 –
In 2012, when this blog was new, I wrote a short piece about Cody Wilson’s vision to combine Second Amendment maximalism with tech-utopianism to ensure that every citizen has even easier access to firearms than we do now. DIY gun production using 3D maker technology was more than a hobby to Wilson, it was a movement he called Defense Distributed. “How do governments behave, if they must one day operate on the assumption that any and every citizen has near instant access to a firearm through the Internet?” he asked.
Now that we must once again “pay the price of freedom” with the blood of slaughtered children, among the 240 mass shootings this year, I looked up Defense Distributed for the first time since that original post to find it fronted by a sleek portfolio of websites. Customers can download CAD designs for guns, purchase starter kits and materials, and even buy a $500 milling machine called the Ghost Gunner. Or visitors can “Join the Fight,” meaning …
LEGIO is Defense Distributed’s technical and legal support fraternity. Legionnaires do more than ‘protect’ the Second Amendment. They fund its direct, material expansion.
Even if the Second Amendment expressed a generalized and unrestricted “right to bear arms,” which it does not, that stated agenda reeks of a familiar hypocrisy which daydreams of anarchy while thriving in the very system it wants to undermine. The answer to Wilson’s dumb question about the “behavior of governments” is that if elected officials ultimately come to fear violence instead of votes, the American Republic will collapse, and his “Legionnaires” can look forward to playing Mad Max for a few weeks before they starve to death.
In a video interview with Reason, Wilson describes himself as post-political, referring to institutions like the American presidency as mere pageantry without any connection to “what is really going on.” Whatever he imagines that might be, Wilson is blissfully unaware of any cognitive dissonance when he characterizes our political and legal system a sham despite his alleged fealty to the Constitution. Even more absurd is that the amendment he proposes to “expand” has only attained its present status by means of brute and undemocratic political force rather than an honest reading of the text or its legislative history.
Talismanic Guns and Trademark Infringement
The prevailing misread of 2A, along with the marketing messages of gun manufacturers and the NRA, has etched the idea in many American minds that personal firearm ownership is either literally or symbolically the safeguard of liberty itself. Consequently, it is no surprise that the unlicensed, untraceable ghost gun is seen as an even stronger talisman of “freedom.” Presumably, it is this psychology that inspired Wilson’s design repository division, Defcad, Inc., to appropriate trademarks owned by the gun control advocacy organization Everytown For Gun Safety, whose logo looks like this:
The complaint filed by Everytown accuses Defcad and several anonymous individuals of trademark infringement, citing evidence of unlicensed uses of both character and design marks on various guns and in marketing materials. Clearly meant as a “fuck you” to gun control advocates, Defcad willfully incorporated Everytown’s protected marks in several CAD designs it supplies to customers,[1] and it named selected items in its product line after Everytown’s protected phrases like MOMS DEMAND ACTION FOR GUN SENSE IN AMERICA …
And, of course, some of Defcad’s customers who made these guns taunted Everytown with photos of their wares on social media, achieving the perfect intersection of asshole and technology, proving once again that tech-utopianism is fundamentally sociopathic.
I am not especially well versed in trademark law but assume that appropriating a mark to use in the very trade the mark was created to oppose, and sowing confusion in the process, presents a strong claim of infringement. There is no question that Defcad appropriated these marks with the intent to criticize and mock Everytown, which is itself protected speech and seemingly the only plausible defense in this case. But several facts here should militate against finding non-infringement on the basis that Defcad’s uses of the marks are exclusively parodic, satirical, or critical.
Although this suit is at trial in the Second Circuit, the Fourth Circuit offers insight in the case Louis Vuiton Malletier v. Haute Diggity Dog, holding that the latter’s “Chewey Vuiton” dog toys lampooning LV handbags etc. were non-infringing parodies. First, in considering what it calls the PETA test (from PETA v. Doughney), the court states, “A parody must convey two simultaneous — and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody…This second message must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement,” the opinion states, quoting PETA.
Next, the court applies the three Pizzeria Uno factors (Pizzeria Uno v. Temple), which weighs the likelihood of confusion by 1) considering the market awareness of the mark used; 2) similarity of the allegedly infringing mark(s) to the original(s); and 3) similarity of the products at issue. “It is a matter of common sense that the strength of a famous mark allows consumers immediately to perceive the target of the parody, while simultaneously allowing them to recognize the changes to the mark that make the parody funny or biting,” the opinion states. (Emphasis added.)
The considerations under both tests should disfavor Defcad. Everytown’s marks are not so widely known and recognizable as a major consumer brand; Defcad made no alterations to Everytown’s protected marks; and although there is obvious contradiction between the two missions (rather than products) in this instance, confusion exists because Everytown’s marks could plausibly be used without irony on a firearm.
While researching this topic, I personally experienced the kind of confusion that trademark law is intended to alleviate in the market. Because I was previously unfamiliar with the Everytown organization but aware that many gun rights advocates also preach gun safety, it was not readily apparent that, for instance, this firearm had been sarcastically affixed with trademarks owned by a gun control organization. And, of course, American flag variations are not a clear indication of any party’s point of view.
All the winning parodies cited in LVM v. Haute Vuiton include significant alterations of the marks used, involve products unlikely to be confused with the ones being lampooned, and all generally express good-natured humor. While there is nothing good-natured about Defcad’s use of Everytown’s marks, more germane to the question presented is that there is no clear evidence of parody, or even commentary, that is immediately recognizable to the ordinary consumer who (like me) encounters this product without prior knowledge of the Everytown organization. The less well-known the trademark, the less likely an alleged infringer can claim to parody the mark.
Likewise, with protected phrases like “Moms Demand Action,” most of us are aware that there are moms who demand gun control and moms who demand more guns in every hand. Hence, the defendants are not clearly expressing a parody that is recognizable to a market outside a Venn diagram that encompasses substantial awareness of both Everytown and Defcad’s ghost guns. To a majority of observers, I suspect these appropriations create significant confusion, and a finding for Defcad would seem anathema to the purpose of trademark law.
EFF Defends Anonymity of the Doe Defendants
Whether Defcad’s individual customers (e.g., Yeezy in the tweet pictured above) should be named defendants in this suit is a fair question, but if DIY truly means joint manufacture of a product, does this not imply some shared liability with the commercial provider of the materials? (And with firearms, this raises a number of questions more complicated than trademark infringement.)
Because the individuals who posted mocking photos at Everytown on social media are anonymous, Everytown asked the court to order these parties unmasked during the discovery phase—a request apparently granted by the district court. On this matter alone, the Electronic Frontier Foundation filed a motion asking leave to file an amicus brief in response to “the district court’s failure to meaningfully analyze and consider the First Amendment rights of anonymous online speakers targeted by Plaintiff’s discovery order.”
Without overtly defending Defcad, or taking a position on Everytown’s underlying infringement claim, the EFF states that “the Doe defendants appear to be using the mark in question for expressive purposes.” The EFF asks the court to apply a “robust First Amendment” analysis prior to allowing the identification of the anonymous speakers, and it bolsters its argument with the underlying principle that trademarks may be used without license for criticism, parody, and other forms of protected speech.
While the EFF is correct in general, and should probably be allowed to file a brief, several factors in addition to those discussed above weigh against the speech concerns raised. First, removing the veil of anonymity does not necessarily chill the speech right of the individual, and such a claim appears weak in this instance. A court should consider how essential anonymity may be to expressing the speech at issue, and here, it is implausible to the point of absurdity to argue that anonymity is necessary to express scorn for gun control.
Second, recognizing the fact that sock puppets and bots are often used on social platforms to extend the reach of a particular message (something the EFF knows well), the plaintiff here has a right to know the identities of the individuals or entities allegedly infringing its trademarks. For all Everytown knows, these social accounts may be owned and controlled by Defcad itself. There is simply no reason to believe that behind every avatar is a unique, human citizen engaged in speech protected by the First Amendment.
Third, if Defcad’s defenses are likely to fail on the merits, this should weigh against the Doe defendants’ right to anonymity in a case where they have jointly manufactured and promoted products which are permanently engraved with Plaintiff’s marks. The Doe defendants’ right to criticize Everytown or gun control is without question, but they have limitless options for expressing that view without engaging in or facilitating trademark infringements that sow the kind of confusion discussed above.
Just as it was no surprise that crypto would be a currency of choice for criminal activity, the low-cost, untraceable ghost gun offers the criminal anonymity in his choice of weapons. In a statement issued by the White House, 20,000 suspected ghost guns were recovered in criminal investigations last year— “a ten-fold increase from 2016.” In response to both federal and state authorities promising to ban ghost guns, Wilson predicts that laws and regulations will be ineffectual against the disintermediated inevitability of open access to the materials and tools that he and his competitors provide.
It would be funny, if it were not tragic, to watch John Perry Barlow’s chickens come home to roost and to discover that they are all armed with deadly weapons. Is anyone truly surprised that Wilson’s dream of an unregulated militia is a logical consequence of opposition to “artificial scarcity, intellectual property, and all forms of regulation?” Strange that it started with music piracy and now it’s guns. Strange. But not at all unexpected.
[1] And based on the attitude expressed by DD, it seems likely that at least some of the designs are infringing copyrights.
