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Identity of Anonymous Online Speakers Shielded by First AmendmentOn May 9, 2011, the United States District for the District of Utah granted Defendants' Motion to Quash Subpoenas, Issue Protective Order, and Dismiss Complaint in a case that stemmed from Defendants' anonymous online speech. Koch Industries, Inc. v. Does, 2011 WL 1775765 (D.Utah). Koch Industries is a large corporation that is involved in a wide variety of industries, including the energy business. Koch maintains a website describing its business and its policy on various political issues, such as editorials rejecting the science of climate change. Defendants were individuals who later identified themselves as anonymous members of Youth for Climate Truth. The case arose after Defendants created a fake press release purporting to announce a decision by Koch to cease funding organizations that deny climate change. The press release included a link to a website created by Defendants, www.koch-inc.com, designed to look like Koch's actual website. The website was online for a few short hours, but created a media frenzy in its fleeting existence because it wholly opposed every political view normally expressed by Koch. Major media outlets, such as The New York Times and The Economist, identified the website as a hoax. While there was no suggestion that any media organization took the press release seriously, Koch alleged that it was forced to spend time and money responding to inquiries and investigating Defendants. Koch brought suit alleging trademark infringment, violation of the Anticybersquatting Consumer Protection Act ("ACPA"), unfair competition, violation of the Computer Fraud and Abuse Act ("CFAA"), and breach of Koch's website terms of use. Koch subsequently filed a motion seeking the discovery of the Defendants' identities. Defendants filed the instant motion to protect their identities and to obtain dismissal of Koch's Complaint. The court began its analysis by addressing the motion to dismiss on Koch's substantive claims. The court granted the Defendants' motion to dismiss on the trademark infringement and unfair competition counts. The court held that the Lanham Act only regulates commercial speech and Defendants' "fake press release and website did not relate to any goods or services and were only political in nature." Koch argued that the courts have allowed claims to go forward where defendant's use of the mark might have diverted the public from plaintiff's website. The court rejected this "interference" theory because Koch was unable to establish any commercial use by Defendants, and the Tenth Circuit had failed to recognize that theory. Koch argued that it satisfied the commercial use requirement because Defendants set up the website to attract attention and funding for its organization. The court rejected this as factually impossible because Defendants did not identify their group in the press release or website. The court also granted Defendants' motion on Koch's ACPA count. Koch was unable to establish that Defendants "used or registered the domain name with bad faith intent to profit." The court held that Koch presented sufficient evidence to establish "bad faith," but that the claim failed because the Defendants did not intend to "profit" from their activities because Defendants activities were completely anonymous. The court further granted Defendants' motion on the CFAA and breach of contract counts because Koch failed to establish the requisite loss or damage. Additionally, Koch failed to establish that Defendants had assented to the terms of use on Koch's website because there was no prominent notice that a user would be bound by those terms. Lastly, the court granted Defendants' motion to quash subpoenas because Koch failed to make a preliminary showing that their complaint had merit. The court held that it will not strip speakers of their First Amendment right to anonymity, unless the plaintiff can first establish evidence to support each element of its cause of action.
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