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Thursday, May 19, 2011

Judge Dale Kimball rules Koch brothers can't abuse trademark & hacking laws to sue satirical critics. Host Bluehost shows true color -- yellow!

Koch Brothers Can't Abuse Trademark & Hacking Laws To Sue Satirical Critics

by Mike Masnick, from the good-decisions dept, May 10, 2011

The Koch Brothers have been the center of a lot of attention over the past year or so, for their funding of a variety of political efforts that are often described as "right wing" or "libertarian" (tragically, some people seem to think these two things are synonymous, when they are not). Either way, you would think that if the Koch Brothers really were so staunchly libertarian, as some reports have made out, that they wouldn't seek to use the court system to intimidate and attack critics with bogus charges of trademark infringement, unfair competition, computer hacking and a few other things. Really, it seems like any self-declared libertarian should be forbidden from suing for "unfair competition." Either way, in this case, the Koch Brothers were suing because some anonymous climate change activists had put out a satirical press release and website, pretending to be the Kochs', claiming to have reversed their position on climate change. There was plenty of reporting on the satire... but all of it recognizing that it was satire.

Such forms of satire are quite common in political circles. In fact, one could argue that these activists were really just doing a copy of what the Yes Men did to the Chamber of Commerce a couple years ago. Thankfully, the court dismissed the lawsuit on all of the claims and dismantled the Kochs' arguments, one by one. The trademark infringement claim is bogus because there was no commercial use and no confusion.

The computer hacking charge was particularly nefarious, as it's yet another attempt to abuse the Computer Fraud and Abuse Act against actions someone doesn't like. This was a huge stretch. Clearly, the activists didn't hack the Kochs' website. Their claim is based on the idea that by setting up this satirical site (made to look like the Kochs' site), it involved violating the terms of service found on their own website. The judge isn't buying it:
[In] this case, Defendants were given unimpeded access to the information on Koch's public website. Koch’s complaint is not that Defendants obtained the information without authorization, but rather that they ultimately used the information in an unwanted manner. The CFAA addresses only the act of trespassing or breaking into a protected computer system; it does not purport to regulate the various uses to which information may be put.
Finally, the court gives the Kochs a lecture on the importance of anonymity as a part of the First Amendment. 

There is a separate issue in this case that's also worth noting. When the Kochs originally filed this lawsuit, they sent a subpoena to the hosting company of the satirical website, Bluehost. Bluehost, which offers "anonymous" hosting, simply handed over the info to the Koch Brothers. It didn't even contact the domain holders first or give them a chance to respond. In fact, a Bluehost VP went straight to the press and called the activists crooks:
"He said the firm deals with this type of thing on a very regular basis, and its policy is to fully comply when served with a legitimate subpoena. He said the information Koch sought has already been delivered.

“'We are not in the business of harboring, you know, felons and crooks. We are not about that. This isn't WikiLeaks,' Ashworth said. 'We comply with the law here.'”
As Paul Alan Levy notes, this certainly makes it look like Bluehost is not the most reliable of hosting companies if you expect your hosting company to actually protect your First Amendment rights (is that so much to ask?):
Bluehost knew that the registrar of the name wanted to remain anonymous – because it had sold him anonymous registration. And most major ISP’s and name registrars know that the standard procedure for identifying anonymous Internet users is to give notice of the subpoena and then wait for a few weeks to give the anonymous user an opportunity to come to court to show that the lawsuit does not have a substantial chance of success, and hence that there is no compelling interest that warrants overriding the First Amendment right to speak anonymously. I know for a fact that Bluehost knows about these cases, because I myself have told its owner about them in the course of past representation of Doe clients who had used its services, trying to persuade it not to reveal their identities without giving them a chance to object. But Bluehost did not give its customer the benefit of the doubt. It immediately shut down the satiric web site...
And then there's the quote calling the activists "felons and crooks." As Levy notes, the court has now declared the opposite to be the case:
In fact, District Judge Dale Kimball has not only declared that Bluehost’s customers not “felons or crooks,” he decided they were Americans legitimately exercising their First Amendment rights. Judge Kimball also ruled that Koch’s complaint couldn’t withstand a motion to dismiss. Judge Kimball ordered Koch not to reveal the information about Bluehost's customer that Bluehost should never have revealed in the first place, had it met its obligations to the customer to give him the chance to protect his anonymity.
It seems like Bluehost owes its customers a big apology.

See the judge's full decision at the link below:

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