Wed May 18th, 2011 at 01:34:18 PM EST
Cross-posted from my blog.
Late last year, a group of merry pranksters issued a fake press release satirizing Koch Industries' environmental policies, using Koch's trademarks and name to make the release look like it was actually from Koch. FYI, Koch Industries is the Koch Bros., the billionaires who are funding the Tea Party and about every anti-Middle-Class piece of legislation in the country. Nobody was actually fooled into thinking the press release came from Koch, but Koch did have to spend some staff time responding to inquiries. Well, things like this aren't supposed to happen to People Who Matter, like the Koch Bros., so they decided to get to the bottom of it. They sued Bluehost and Fast Domain, the internet service providers (ISPs) the pranksters used for disseminating the release, here in Utah to get the names of the pranksters (Bluehost is based here.), alleging the pranksters had committed IP fraud and infringement.
Background: With any type of intellectual property, there are certain ways you can use it without paying for it. This is called "fair use". Go beyond fair use without paying, and you're infringing. One group of fair uses are informative uses. A reporter might use a company logo in a news story, a reviewer might quote from a book, and a researcher might cite to an earlier work, and none would be infringing the IP they are using. Another group of fair uses are political uses. For example, company names and logos are frequently used in strikes and boycotts, but the users are engaged in political speech and are Constitutionally protected.
An example, to give you an idea of how these things normally work. A couple of years ago, the outdoor clothing manufacturer North Face learned that it was being lampooned by a couple of people selling clothing under the name South Butt. South Butt was not only parodying North Face's name but also its logo and marketing slogan. And South Butt was making money selling recreational clothing, in direct competition with North Face. North Face sued, received a lot of bad publicity for picking on the little guy, and ultimately settled the case. The terms are secret, but South Butt's operations have apparently been limited in some way to minimize their impact on North Face. Commercial use, infringement, resolution. That's the norm.
Then there's the Koch lawsuit. The Koch Bros. targeted the ISPs so they could find out whom they really wanted to attack. Both ISPs caved the day after being served with subpoenas and turned over the names. One of the ISPs went so far as to justify its actions by saying it didn't want to harbor felons (Excuse me, but what happened to presumption of innocence? And has the U.S. become do corporate-owned that the Koch Bros. now have criminal charging authority? Memo to me: Never use these clown school ISPs for anything.).
The pranksters immediately ran into court to protect themselves by quashing the subpoenas. Koch's response, courtesy Parsons Behle & Latimer, would be laughable if it weren't so insidious and backed by so much money and political clout. It boils down to, "The pranksters' political speech isn't Constitutionally protected because it infringes on our IP." Which of course is exactly backward, because the Constitution trumps all other laws in spite of the recent efforts of Our Glorious SCOTUS (As an aside, during my first year in law school, Vic Filippini, the third-year in charge of my legal writing class, ripped me to pieces for making a backward argument like this, even though the brief he'd asked for was factually and legally impossible otherwise. If I'd known what I was doing, I'd have told him I was preparing for a career with a major, regional firm. Instead, I attempted to "correct" my deficiencies. Now he's a partner at Holland & Knight, and I get paid in muskrat pelts and sacks of feed. Go figure.).
Anyway, Judge Dale Kimball issued his ruling, and it's a smackdown of Koch. Basically says, "What part of 'protected political speech' don't you understand?" So what's the result? First, Koch Bros. can't use the info they got from the ISPs (Yeah, right.). Second, the ISPs had better lawyer up after rolling over and coughing up confidential information so readily. Third, Judge Kimball had better start watching out for a well-funded smear campaign, including Andrew Breitbart fake videos of him soliciting bribes. Finally, expect Koch Bros. to start a full court press on Congress to amend the IP laws and cut off all this "judicial activism." Because People Who Matter shouldn't have their business interfered with by the Constitutional rights of the rest of us.