By Alex Moss
A fight over unmasking an anonymous Reddit commenter has turned into a significant win for online speech and fair use. A federal court has affirmed the right to share copyrighted material for criticism and commentary, and shot down arguments that Internet users from outside the United States can’t ever rely on First Amendment protections for anonymous speech.
EFF represents the Reddit commenter, who uses the name “Darkspilver.” A lifelong member of the Jehovah’s Witness community, Darkspilver shared comments and concerns about the Jehovah’s Witness organization via one of Reddit’s online discussion groups. Darkspilver’s posts included a copy of an advertisement asking for donations that appeared on the back of a Watch Tower magazine, as well as a chart they edited and reformatted to show the kinds of data that the Jehovah’s Witness organization collects and processes.
Earlier this year, Watch Tower subpoenaed Reddit for information on Darkspilver as part of a potential copyright lawsuit. The Watch Tower Bible and Tract Society, a group that publishes doctrines for Jehovah’s Witnesses, claimed that Darkspilver’s posts infringed their copyright, and that they needed Darkspilver’s identity to pursue legal action. EFF filed a motion to quash the subpoena, explaining that Watch Tower’s copyright claims were absurd, and that Darkspilver had deep concerns that disclosure of their identity would cause them to be disfellowshipped by their community. Accordingly, Watch Tower’s subpoena could not pass the well-established “Doe” test, which allows a party to use the courts to pierce anonymity only where they can show that their claims are valid and also that the balance of harms favors disclosure. The Doe test is designed to balance the constitutional right to share and access information anonymously with the right to seek redress for legitimate complaints.
In a hearing earlier this month, Watch Tower argued that they met the requirements of the Doe test, claiming that their copyright was infringed and also that the Doe test did not apply because Darkspilver is not a U.S. resident. On Friday, May 17, Magistrate Judge Sallie Kim rejected the latter argument, holding that the First Amendment can apply even if a Doe is not in the U.S. The court noted that because Darkspilver’s speech was on a U.S. company’s platform and has a U.S. audience, silencing them would have unavoidable domestic ripple effects. As Judge Kim explained, “The subpoena here was issued by a court in the United States, on behalf of a United States company (Watch Tower) and was directed against another United States company (Reddit). Moreover, the First Amendment protects the audience as well as the speaker.”
The court also rejected Watch Tower’s claim of infringement regarding the Excel spreadsheet. It held that Watch Tower had a potentially valid claim with respect to the advertisement, but went on to conclude that Darkspilver’s use was likely lawful under the fair use doctrine. The court carefully reviewed the fair use factors and concluded that “they tip sharply in Darkpilver’s favor.” We wholeheartedly agree.
But we disagree with the court’s final decision: to order limited disclosure so that Watch Tower might attempt to shore up its copyright claim. While the court agreed that “Watch Tower has not demonstrated any actual harm or likelihood of future harm”—the fourth fair use factor—it gave undue credence Watch Tower’s claim that “the harm it suffered from people infringing on its copyrights was directing others away from its website.” Based on the theory that “[p]erhaps Watch Tower, if provided the opportunity, could demonstrate that fewer people visited its website after Darkspilver’s posting,” the court decided to allow Watch Tower’s counsel access to Darkpsilver’s identifying information.
Based on the court’s approach, the Doe standard offers weak protections for fair users. Even a far-fetched theory regarding a particular fair use factor, like the one posited here, might be enough to justify disclosure even if the rest of the fair use analysis clearly suggests the use was lawful. That said, the disclosure is subject to strict limits. Reddit may disclose it only to Watch Tower’s counsel of record, and that counsel is prohibited from sharing that information with anyone else—including the client—without a separate court order. In addition, the court explicitly “admonished that any violation of this Order will be sanctioned.”
This case touches on a lot of EFF’s most important issues, and it’s a prime example of how intellectual property, free speech, and privacy can intersect in complicated ways, making it hard for people to speak out about controversial issues. We are considering next steps. But in the meantime, we are also celebrating a crucial win for the First Amendment and access to anonymous speech for Internet users everywhere.
Alex is a Staff Attorney on EFF’s intellectual property team, focusing on legal issues that affect innovation and creativity of all kinds. Before joining EFF, Alex practiced complex commercial litigation at Sullivan & Cromwell LLP in New York and Durie Tangri LLP in San Francisco, where she handled patent, copyright, trademark, contract, and antitrust matters for a wide range of clients in state and federal courts across the country. After graduating from Stanford Law School, Alex developed a a particular passion for patent law while clerking for the Honorable Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit. Before law school, Alex worked with independent recording artists at Rough Trade America and Alan McGee Management.
This article was sourced from EFF.org
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