Court Smacks Down Koch Industries’ Attempt to Shut Down Satirical Website — Koch Industries v. Does

[Post by Venkat Balasubramani]

Koch Industries, Inc. v. Does, 10CV1275DAK (D. Utah; May 9, 2011) [.pdf]

[This is one of those cases that I intended to cover when it came out, but it got lost in the shuffle. Eric talks about his ‘backlog’ of blog-worthy cases that he tackles from time to time. I prefer to view it as a quagmire that I wade in and out of.]

EFF, Public Citizen and other similar organizations have excellent resources for creators of parody and satire on the internet. A recent case (litigated by Public Citizen) illustrated a few pitfalls a plaintiff–who is seeking to shut down such non-commercial content–may face. A commercial motivation does not automatically doom a parody or satire defense, but the total absence of a commercial motive will neutralize a plaintiff’s claims.

A group who identified themselves as “Youth for Climate Change” set up a faux website at “” at which they purported to announce Koch Industries’ official shift in position towards groups who undertake climate change research and advocacy. The website was announced via a press release which was mailed to news organizations. The site was up for only a few hours but drew a fair amount of media attention. The media quickly identified the site and release as a hoax. Koch sued, asserting claims under the Lanham Act, the cybersquatting statute and the Computer Fraud and Abuse Act. Koch requested and obtained the court’s permission to issue subpoenas in order to determine defendants’ identity. Defendants appeared, moved to quash the subpoenas and moved to dismiss. The court dismisses the lawsuit, and grants defendants’ request for a protective order, keeping their identity under wraps.

Lanham Act and Cybersquatting Claims: Both the Lanham Act and ACPA claims were dead-on-arrival, since defendants’ press release did not relate to any goods or services. There was no reference to Koch’s products or even to any of Koch’s business practices. Koch tried to argue that defendants set up the fake website to draw attention to defendants and to ultimately raise funds for defendants’ activities but the court rejects this argument, noting that defendants “did not identify their website or provide a means for making a contribution to [defendants’] entity.” In fact, neither the press release nor the fake website contained a link to defendants’ website. Koch asserted a similar argument with respect to its ACPA claim but the court notes that since defendants set up and operated the website “completely anonymously . . . the only agenda [defendants] could have been promoting was [their] message, not any entity.” Again, the court notes that defendants’ anonymity made any donations impossible.

CFAA Claim: Koch also asserted a Computer Fraud and Abuse Act claim and this claim fared no better. This claim was presumably based on defendants’ access of the Koch website in the course of preparing their fake press release. The court found that Koch made its website available to the general public. Although the website contained a restriction that “competitors” were not permitted to access the website, the court found that defendants did not agree to this restriction since it was “buried” at the bottom of the first page. Koch cited to Specht v. Netscape for the proposition that browsewrap agreements are normally enforceable but the court notes that this case, and others cited by Koch, were all decided in the commercial context. Koch was unable to identify “a single case imposing ‘contractual’ speech restrictions on noncommercial web users.”

Other coverage:

Utah Court Strikes Blow for Free Speech, Dismisses Trademark and CFAA Claims Against Political Activists” (EFF)

Court Protects Hoax Press Release” (Bill McGeveran)

In Which We Lose Our Funding And Are Reduced To Eating Gravel” (Popehat)

In Koch spoof case, judge favors First Amendment” (CitizenVox)