Federal Court Issues A Very Good Very Bad Decision Where Copyright And Free Speech Meet

from the good-news-bad-news dept

It’s hard to know exactly what to say about this decision involving a subpoena seeking to unmask a Reddit user. There are some notably good things about it, and still plenty bad. The bad: that a subpoena seeking to unmask a critic was upheld. The worse: that their First Amendment right to anonymous speech ultimately took a backseat to a copyright claim. On the other hand, there is some good in the decision, too, particularly in the discussion considering the First Amendment implications of upholding the subpoena, which may be helpful for future anonymous speakers. Also, while the subpoena was upheld, it was upheld with conditions that will somewhat minimize, but certainly not eliminate, the chilling effect of its enforcement.

In this case a user known as "Darkspilver" had criticized the Jehovah’s Witnesses organization on Reddit. He chose to do it on Reddit in significant part because Reddit allowed him to post his criticisms anonymously. [p. 2] In his critical posts he included two items that the Jehovah’s Witnesses organization claims violate its copyrights: an ad the Jehovah’s Witnesses had run to solicit donations, and a chart he made from data found in one of the organization’s Excel files. The organization then propounded a subpoena to find out the identity of the Reddit user it alleged had infringed its copyrights in posting these things.

We’ve written many times before about the concerns raised when discovery demands can cause online speakers to lose the anonymity the First Amendment entitles them. These discovery demands can come in many forms – state civil subpoenas, federal grand jury subpoenas, NSLs, etc. – but while the procedural rules governing how each one may be balanced against the speaker’s First Amendment right to anonymous speech can vary, that First Amendment right does not. All of these instruments should be equally, and adequately, protective of this constitutional interest. But in practice the protection they afford are not. An online speaker whose anonymity might end up protected in the face of certain types of discovery demands might find it trumped by others.

In this case the discovery demand came in the form of a Section 512(h) subpoena – the special species of subpoena that the DMCA invented for copyright holders to use to identify users of online platforms whom they allege had infringed their copyrights through their use of those platforms, and without first having filed an infringement lawsuit. This case addressed how courts should decide whether to uphold these subpoenas in the face of the First Amendment interest in protecting the identity of the speaker.

Which brings us to the good parts of the decision, where it recognized that there was a significant First Amendment interest in protecting anonymous speech. [p. 7-9] Perhaps most importantly, it recognized that the First Amendment protects anonymous speech even when the speaker is outside of the United States.

Based on the involvement of the United States Court’s procedures by and against United States companies and the audience of United States residents, as well as the broad nature of the First Amendment’s protections, the Court finds that the First Amendment is applicable here. [p. 7]

This judicial recognition is important, and this case may represent one of the first occasions when a court has articulated it so specifically. It would be a problem if the First Amendment protection for anonymous speakers could end at the border. For one thing – which the court did not discuss – for the protection to be meaningful for American speakers, it needs to be available to all speakers everywhere (at least when it comes to anonymous speech on US-based platforms). It would effectively eviscerate the right to speak anonymously if you first had to unmask the speaker to find out whether they had the right to resist the unmasking.

The other reason it would be a problem if non-Americans could not count on this protection – which the court did discuss – is that the First Amendment protects the right of the public to read as much as it protects the right to speak. ("[T]he First Amendment protects the audience as well as the speaker." [p. 6]). In other words, when we talk about the effects of discovery instruments on anonymous speech, the inquiry needs to go beyond focusing just on how it affects the rights of those whose anonymous speech is at risk but the rights of all the Americans whose ability to consume that speech will be undermined when speakers and their speech are chilled.

But simply saying that the First Amendment applies didn't, and wouldn't, resolve the matter. There are still competing concerns: the anonymous speaker's First Amendment interest, and the interest of the party propounding the subpoena, who may have a legitimate need to learn the identity of whomever they allege had wronged them. So to figure out whether a Section 512(h) subpoena should be upheld in the wake of these competing interests, the court borrowed a test that had been used before in the Highfields Capital Management and Art of Living Foundation cases. If the subpoena is to be upheld,

(1) The [subpoenaing party] must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the [subpoenaing party] makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the [subpoenaing party] and by a ruling in favor of the [anonymous speaker]. [p. 9]

Even though a 512(h) subpoena doesn't require a lawsuit to have first been filed, it still would be predicated on a copyright infringement claim. So in tackling the first part of the test the court considered whether that claim would be a valid one here. Which in this case it turned out to be a split decision. The Jehovah's Witnesses organization was actually asserting two claims of infringement, one for the advertisement and one for the chart, and the court rejected the one for the chart.

It is not clear that the chart meets the minimum standards of originality required for copyright protection. Watch Tower has not yet registered the chart. Therefore, the chart is not entitled to a presumption of copyright validity and Watch Tower must submit evidence to make the requisite showing. … Here, Watch Tower summarily argues that “the layout, design, and word choice [of the chart] are all creative in nature,” with no supporting evidence. In the absence of any supporting evidence, the Court finds that Watch Tower has not met its burden to show, with competent evidence, its ownership of a valid copyright in the chart. Therefore, Watch Tower fails to demonstrate a prima facie case of copyright infringement with respect to the chart. [p. 11].

But even for the advertisement, which had a more plausible copyright claim [p. 10-11], the infringement inquiry did not end there, because the speaker’s use of it could have been a fair use and thus still not constitute copyright infringement. And if there were no valid infringement claim, then there also should be no basis for upholding a subpoena seeking to learn the identity of a potential defendant to sue.

Which brought the court to the second part of the test, the "balancing of the harms," where the court analyzed whether the use of the ad was in fact a fair use. This is an important question for courts to ask in order to ensure that anonymous speech remains adequately protected because, as the court acknowledged, fair use is how the First Amendment gets baked into copyright law. [p. 13] It would do no good if the First Amendment protected public discourse that copyright law could then forbid. Public discourse often requires using copyrighted works in order for that discourse to be valuable, especially in cases like these where the critical discourse was about the subject of the work and the copyright holder itself. Accordingly, the court found that Darkspilver's use of the ad was likely fair.

In balancing the harms, while considering the fair use defense, the Court finds that they tip sharply in Darkspilver’s favor. [p. 17]

But even after all that discussion, the court still decided to uphold the subpoena, and that's why this decision is concerning. The issue is that the court seems to have minimized the range and degree of harms that could befall this and future speakers if the subpoena was upheld. Which is not to say that it presumed there to be none:

[T]he Court notes that Darkspilver’s concerns stem largely out of his fear that those in his congregation will discover his identity and shun him. [p. 17]

To address this concern, the court imposed conditions on the disclosure of his identity, ordering it to be released with an "attorney's eyes only" restriction. This restriction means that the plaintiff's lawyer would still have enough information to file a lawsuit against the user, but no one else would be the wiser. Which would mean that no one else, including the plaintiff, could know enough about this critic to impose any other retribution.

Watch Tower’s attorneys of record may not disclose Darkspilver’s identity even to its client, staff, or expert witnesses without approval in a Court Order from this Court. [p. 17]

That's great, but that's not the only thing the organization could do to Darkspilver. It still could sue him, although it would have to do it in a way that protected his identity.

If Watch Tower elects to file a lawsuit against Darkspilver, the Court directs Watch Tower to seek to file the suit under his pseudonym and to keep his actual identity under seal, for attorney’s eyes only. [p. 18].

In one sense, this is a good outcome, and not unprecedented. In Signature Management Team v. Doe a copyright case was able to be litigated without the defendant ever being publicly named. Because people unhappy with critical speech often want to know the name of the speaker in order to be able to make them regret speaking up, but not actually to sue them, the court's baby-splitting here makes some sense. With this protective order it should preclude that sort of extra-judicial retribution against the speaker.

But it pointedly doesn't preclude judicial retribution, and that's a problem. Per this decision, the speaker could still be sued. Granted, in the face of the court's copyright analysis it would be a pretty weak case. But even weak cases can be devastating in terms of time and money for defendants to have to litigate. A well-funded plaintiff could easily choose to tie a critic up in the courts to make them regret for having spoken out against them. The plaintiff might ultimately lose, but not before extracting an enormous and chilling cost from the speaker.

The reason this decision is so hard to cheer is that, despite of all the reasons the court recognized that the critical speech was likely legal, by allowing this subpoena to go forward, even when the case was so weak, the court has given the green light to this sort of abuse of the courts. All of the court’s lofty language about how the First Amendment works to protect critical speech on matters of public interest effectively becomes meaningless if it still means that, as long as the person who doesn’t like that critical speech can frame their dislike in terms of copyright claim, it can still impose a toll for having spoken it.

In this case the speaker in question has already been chilled and stopped posting on Reddit. [p. 12] And it won't be the last speaker to be cowed into silence if the price of speaking is litigating to defend it.

Filed Under: 512h, anonymity, copyright, darkspilver, dmca, dmca subpoenas, free speech, jehovah's witnesses
Companies: reddit


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  1. icon
    That One Guy (profile), 1 Jun 2019 @ 1:19am

    Re: Re: Re:

    There is literally no penalty for considering fair use and getting it horribly wrong.

    Or not considering fair use at all and filing notices anyway, whether directly or via bots, because let's be honest, the penalties in copyright law only ever go one way.


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