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AFTERBURN REPORT 2010

LEGAL TEAM

Intellectual Property

Burning Man primarily enforces Intellectual Property (IP) issues in order to uphold the principle of Decommodification. We seek to prevent and/or regulate the use of the Burning Man name and imagery for overtly commercial purposes, and to moderate public distribution of imagery from the event. We also work to support our participants’ rights to their own individual publicity -- although this is a matter of cultural consideration for our community, and less a legal obligation.

Now more than ever, the IP realm mutates almost weekly as new technologies and uses for imagery emerge. The volume of individual requests or enforcements for images taken at Burning Man is at an all-time high, and the number of trademark enforcements and interactions grows with each passing year.

But it’s not just enforcement – the Communications Department and a small sub-team of IP volunteers also engage in a year round process of review, press response and registration, and public support, in addition to monitoring intellectual property on behalf of Burning Man and evolving our policies to keep up with theory, practice, and the evolution of intellectual property law.

Trademark enforcement is an area of the organization’s efforts that may not be widely understood. Though some IP violations are "outside world" violations from the uninitiated, many issues come from uses attempted within our own community. They are often the result of a misunderstanding of what trademarks really mean, what our copyright policies are, and what types of uses Burning Man does and does not seek to regulate or enforce against. More than ever, this role is a balance of protecting marks and policies, and watching and responding to the ways people expect to be able to use their images in this age.

As has long been our practice, this endeavor usually translates to sending a polite email notifying the person of the violation, which generally garners an immediate and equally polite resolution. The vast majority of IP issues are resolved with this type of friendly conversation, though on a rare occasion legal action is necessary.

New or evolving violations/issues this year were manifold, and included:

 - The use of event footage in CDs/liner notes for musical artists

- Facebook identity issues for official vs. unofficial Burning Man communities/events

- Production of art photo prints for mass distribution

- Services and vendors attempting to market wares to Burners

- Burner-to-Burner business or personal ad listings

- mobile devices/iPhone and iPad app requests

- Stock image/image use evolution on personal photo sharing sites.

Only a few cases required additional legal escalation, mostly centering on trademark violations in 2011.

To better illustrate our policies to our community and help us evolve our community practices in this area, we undertook a series of steps in 2010:

-       We re-crafted our use policies with the help of the Electronic Frontier Foundation and Creative Commons, advised by an intense feedback period with our blog readers and Jack Rabbit Speaks subscribers;

-       We held several discussion sessions and a photographer’s salon around the cultural implications of image policy evolution;

-       We created a Trademarks and Image Use Guidelines page on Burningman.com to better illustrate our community practices and help participants avoid pitfalls in their use of marks and images;

-       We presented about the evolution of our policies and practices at Austin’s South By Southwest Interactive Festival, the Open Video Conference in New York City, and in several other public forums.

Lawyers for Burners & the ACLU

As was attempted in 2009 (before many of the blank forms went missing), Law Enforcement Feedback Forms were distributed in 2010 at the Greeter’s Station.  The goal?  To hear from participants about their interactions with law enforcement.  The results were mixed.  But amidst the good, the bad, and the ugly were some notable trends.

Again in 2010 the Pershing County Sheriff’s Office conducted underage drinking stings in Black Rock City.  Let’s be clear—the last thing we want is underage drinking at our event.  But we believe that a cooperative effort between law enforcement and the Burning Man Organization to both enforce and educate will go further than a haphazard sting operation that yielded no viable cases of criminal conduct.  After the event, the District Attorney and attorney Marc Picker negotiated a fair and reasonable solution and all cases were dropped.  Positive feedback about Pershing County officers included being helpful, professional and friendly, assisting in such situations as vehicle accidents, missing children, and minor disturbances. 

Complaints against Bureau of Land Management (BLM) officers greatly outweighed commendations in 2010.  Though BLM staff cooperated greatly with Burning Man staff, including the Black Rock Rangers, LEAL, Gate, Perimeter and Exodus, many participants complained that BLM’s search and seizure tactics bordered on coercion and use of excessive force.  While some officers were seen as friendly and lenient, others came across as intimidating and forceful.  There will undoubtedly always be a dichotomy of perspective in matters of law enforcement.  Nevertheless, the Burning Man Organization endeavors for a time when even the newest BLM officers view Burning Man participants as responsible law-abiding citizens, rather than potential offenders.  And this is said with the utmost respect for the work that law enforcement does at our event and throughout the year.

Just as law enforcement is tasked with enforcing the laws, both Lawyers for Burners and the American Civil Liberties Union (ACLU) are committed to defend participants’ rights.  In 2010, Lawyers for Burners continued its efforts to help participants understand their rights, make decisions about whether to fight citations or pay fines, and to refer them to other counsel as necessary.  Many of the 2009 citations were plead down to littering offenses during 2010.  Lawyers for Burners has already begun its efforts from the 2010 event as well.  Fighting citations will continue into 2011.

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The ACLU increased its on-playa staff in 2010, placing staff members at Playa Info and on roving bike brigades to answer questions from participants about how to protect their civil rights when interacting with law enforcement.  Efforts also included interactive performance art whereby participants role-played with ACLU staff on how to interact with law enforcement.  And in Reno, the ACLU did a “Know Your Rights at Burning Man” question and answer session at the Amendment 21 bar.  The Burning Man organization is grateful for the valuable work that both Lawyers for Burners and the ACLU does for the Burning Man community.

For more information on law enforcement issues see the 2010 LEAL & Ranger Operations AfterBurn report,

Software Licensing

Software licensing?  Yes, software licensing.  In 2010 the software that runs the Playa Info Directory was open-sourced under an Apache 2.0 License.  This gives the user of the software the freedom to use the software for any purpose, to distribute it, to modify it, and to distribute modified versions of the software per the terms of the license.  The decision to open-source the Playa Info Directory was the result of a summit of the Burning Man Technology and Legal Departments, key stakeholders in the open-source programming community and Burning Man software programmers.  Open-sourcing Burning Man’s software is in line with the Ten Principles—especially Gifting, Decommodification and Communal Effort.  For more information see the 2010 Technology AfterBurn.  Currently we are looking at open-sourcing other software applications as well.

Submitted by,
Ray Allen, Lily Rasel, Andie Grace and Patrick FordEnd of page