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Efforts by a Scottsdale, Ariz.-based corporation to learn the identities of individuals who posted several anonymous message board posters were nothing more than an attempt “to take advantage” of the court’s discovery process in order to “intimidate … critics into silence,” several John Doe clients allege in court documents. Rural/Metro Corp. v. John/Jane Does 1 – 4, (Case No. C-00-21283 EAI, N.D. Calif.). However just weeks before a scheduled March 12 trial, plaintiff Rural/Metro voluntarily dismissed all claims against the defendants, saying in a press release that since the offending messages had ceased to appear online there was no reason to go forward with the case. In an ironic twist, attorneys representing the Doe defendants expressed disappointment that they were denied an opportunity to argue in court for First Amendment protection on behalf of their clients. In court filings, the defense likened the Internet to the “modern equivalent of Speakers’ Corner in England’s Hyde Park” by drawing upon the U.S. Supreme Court’s assertion in Reno v. ACLU, 521 U.S. 844, 870 (1997) that chat room users “can become a town crier with a voice that resonates farther than it could from any soapbox.” OPINIONS ON YAHOO Using the screen names “iamcashman2525,” “southernemptyall,” “hotmedicaz” and “smilelikeyoulikeit,” the defendants regularly expressed opinions on a Yahoo message board devoted entirely to Rural/Metro, a health and safety services provider. According to the plaintiffs, the postings constituted violations of the Lanham Act, misappropriation of trade secrets, unfair competition and trade libel. Attorneys for the defendants disagreed, arguing that the anonymous nature of the message board dictates that the speech in question is not actionable under the Lanham Act, which — to be actionable — requires a declaration by a court that the statements: (1) constitute commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendants’ goods or services, which (4) must be disseminated sufficiently to the relevant purchasing public to constitute advertising or promotion within the industry. “If Does are current employees, they obviously cannot be in commercial competition with Rural/Metro. Moreover, even if the Does are former employees, and even if they were competitors, the fact that they are posting information under a pseudonym negates any purpose to influence consumers to buy defendant Does’ goods and/or services because consumers reading the message board (if any) will not know who Does are, and thus could not be influenced � There is clearly no basis for a Lanham Act claim,” the defendants had argued. Francis Torrence and Hartford O. Brown of Seyfarth Shaw in San Francisco represented Rural/Metro. Julie M. Carpenter and Nicole G. Berner of Jenner & Block in Washington, D.C., and Cindy A. Cohn of the Electronic Frontier Foundation in San Francisco represented the Doe defendants. �; Copyright 2001 Mealey Publications, Inc.

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