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

from the good-decisions dept

Wed, May 11th 2011 11:26am — Mike Masnick

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.

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Filed Under: cfaa, free speech, koch brothers, trademark, unfair competition

22 Comments

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KenDowns, 11 May 2011 @ 12:08pm

Libertarians never abuse the system
"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"

Gosh, a person claiming to be conservative, which is supposed to mean they believe in limited government, using that very government to limit other peoples' freedom? What's the world coming to?

Let's just hope this is an isolated case and all of those other incredibly wealthy and powerful free market advocates would never do such a thing, otherwise we might be in trouble.
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Fzzr (profile), 11 May 2011 @ 12:11pm

Outrageous!
If anything, the customers should be apologizing to Bluehost for making them reveal just how little they actually care about their customers!
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ChurchHatesTucker (profile), 11 May 2011 @ 12:13pm

Re: Libertarians never abuse the system
Sadly, American politics on both sides are more about 'supporting your team' than any actual ideology.
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Anonymous Coward, 11 May 2011 @ 12:24pm

"It seems like Bluehost owes its customers a big apology."

And at least in this case, probably some money!
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:Lobo Santo (profile), 11 May 2011 @ 12:24pm

Re: Re: Libertarians never abuse the system
We can't have ideology in politics!

If we did, then we'd end up with idealistic people in politics, and do you know where that would lead!?
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vilain (profile), 11 May 2011 @ 12:34pm

I stayed clear of BLUEHOST
when I found out their business tithes to the Mormon Church. After all the California Pro-Prop 8 stuff the Mormon church was supporting, I didn't want my money going to such a company.

And told the CEO this when he sent me a 'personal note' to find out why I canceled my account. Never heard back and I am glad I steered clear.
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taoareyou (profile), 11 May 2011 @ 12:55pm

More than an apology
If Bluehost charged extra to keep the users anonymous, they should certainly refund all or at least a portion of that cost since they were in breach of contract.
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Anonymous Coward, 11 May 2011 @ 1:49pm

Re: More than an apology
If they took money and violated their non disclosure agreement without receiving an actual court order they need to pay back every penny they took plus a hefty payment/fine as an apology for their violation of their own contract terms.

Now the libel/slander of this group by the company VP is a separate matter. He should be ready to settle with a second personal payment here to remind him that a lawyers letter carries the weight of an atom without the support of a judges ruling.
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Cashie, 11 May 2011 @ 1:59pm

Bluehost caved
Just follow the money. You know they caved because they were either offered a large sum of money or were threatened with a lawsuit. Most companies don't want to go up against an entity like the Koch bros.
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Anonymous Coward, 11 May 2011 @ 3:02pm

Well, at least the Koch brothers have learned their lesson:

Next time, they just need to buy the court. It worked for the University of Florida.
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ada (profile), 11 May 2011 @ 3:11pm

finally, a judge that understands technology and that can apply our 200 year old Constitution to it. its about time!

and boohoo to bluehost.
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Anonymous Coward, 11 May 2011 @ 3:19pm

Conservatism & Libertarianism don't mix
I've always said this and it annoys me to no end. The only thing in common is their opposition to any financial regulations or taxes which is dubious at best, whereas social conservatives are diametrically opposed to everything a civil libertarian advocates. The world would be a better place if more people were civil libertarians.
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Shaun Wilson (profile), 11 May 2011 @ 3:34pm

Re: Re: More than an apology
Exactly, they don't owe an apology, they owe back every cent they were paid. They sold a service (anonymous hosting) that they did not provide. That is fraud.
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Anonymous Coward, 11 May 2011 @ 4:01pm

fdddfasdd fead bf,s
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Anonymous Coward, 11 May 2011 @ 4:01pm

djfko daof
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PW (profile), 11 May 2011 @ 4:10pm

Libel or Slander?
If Bluehost issued their statements in a press release, I'm assuming they would be liable for libel, and if it was utterances then slander would be the term of art here. With that said, shouldn't the Defendants' next action be to sue Bluehost? Certainly harm can be proved here, and even if small, it would send out an important message I would think.
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Capitalist Lion Tamer (profile), 11 May 2011 @ 4:20pm

Fantastic.
I'm glad to see our judicial system is still the first place people run when their feelings get hurt.

My suggestion: move the fuck up on out of this country if you can't develop a thick skin. That whole "free speech" thing is going to keep nipping right in your oversensitive ass time and time again, especially if you happen to be both high-profile and unpopular.

If the legal atmosphere ever gets to the point where somebody worth of satire can't be satirized, we might as well just cede ourselves to Canada and join them in service of the Queen Mother, whose edicts tend to clamp down on certain brands of satire.

This is definitely a push in the right direction. Let's just hope that more people whose egos are as easily bruised as a week-old banana think twice before contacting a lawyer.
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Bobo Bolinski, 11 May 2011 @ 9:51pm

Glad I read this today!
Just sent this to sales@bluehoste...

I had been considering Bluehost and another ISP for a client. But after reading how the company responded to the Koch brothers dust-up I have no choice but to go with an ISP that respects it's costumers. I especially take umbrage to the line where the CEO refers to the customers as "Felons and crooks" before any action by a court. This obsequious behavior is not sought in a company that has an obligation to protect it's customers first and the desires of rich men second.
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Anonymous Coward, 12 May 2011 @ 5:45am

Re: Re: Re: More than an apology
Well yes they owe an apology in the form of a largish payment. If Bluehost has half a brain in the legal department they will do it before they get called to court and it gets renamed a court ordered settlement or a fine.

They need to do this as much for advertising matters as anything else.
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Bobbi Peterson, 12 May 2011 @ 9:01pm

Posted to Matt Heaton's Blog - CEO of BlueHost
Posted on the CEO of BlueHost's personal blog. I doubt it will get approved, but he will definitely get the message:

Hi Matt,

Being a long time BlueHost customer, and having recommenced BlueHost to a number of close friends I am truly dismayed by recent events regarding customer protection by BlueHost regarding client privacy.

To cave so willingly to the Koch brothers in the recent court case involving a satirical website about global warming makes me think that BlueHost really lacks any integrity at all!

Shame on you !

Your VP Ashworth expresses a very cavalier attitude towards protecting the privacy of BlueHost clients with this quote:

��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.��

Free speech in one of the cornerstones of our US Constitution that I would think would be important to a hosting company based in America.

To think that your customer base is filled with crooks and felons who are not important enough to give the most basic considerations is pretty disgusting, and I think reflect a serious problem within your organization.

http://www.mattheaton.com/
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snipper, 19 Jun 2011 @ 7:39pm

its competition!!
the competition become tough nowadays
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FLuckeye, 15 Jan 2012 @ 10:37am

Re: Re: Libertarians never abuse the system
Truer words were never spoken. It is NOT about helping the country, it is about who gets in the spotlight. Very sad state of affairs in American politics.
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