Court Rules DMCA Does Not Override First Amendment's Anonymous Speech Protections (eff.org) 45
An anonymous reader quotes a report from the Electronic Frontier Foundation: Copyright law cannot be used as a shortcut around the First Amendment's strong protections for anonymous internet users, a federal trial court ruled on Tuesday. The decision by a judge in the United States District Court for the Northern District of California confirms that copyright holders issuing subpoenas under the Digital Millennium Copyright Act must still meet the Constitution's test before identifying anonymous speakers.
The case is an effort to unmask an anonymous Twitter user (@CallMeMoneyBags) who posted photos and content that implied a private equity billionaire named Brian Sheth was romantically involved with the woman who appeared in the photographs. Bayside Advisory LLC holds the copyright on those images, and used the DMCA to demand that Twitter take down the photos, which it did. Bayside also sent Twitter a DMCA subpoena to identify the user. Twitter refused and asked a federal magistrate judge to quash Bayside's subpoena. The magistrate ruled late last year that Twitter must disclose the identity of the user because the user failed to show up in court to argue that they were engaged in fair use when they tweeted Bayside's photos. When Twitter asked a district court judge to overrule the magistrate's decision, EFF and the ACLU Foundation of Northern California filed an amicus brief in the case, arguing that the magistrate's ruling sidestepped the First Amendment when it focused solely on whether the user's tweets constituted fair use of the copyrighted works. [...]
EFF is pleased with the district court's decision, which ensures that DMCA subpoenas cannot be used as a loophole to the First Amendment's protections. The reality is that copyright law is often misused to silence lawful speech or retaliate against speakers. For example, in 2019 EFF successfully represented an anonymous Reddit user that the Watchtower Bible and Tract Society sought to unmask via a DMCA subpoena, claiming that they posted Watchtower's copyrighted material. We are also grateful that Twitter stood up for its user's First Amendment rights in court.
The case is an effort to unmask an anonymous Twitter user (@CallMeMoneyBags) who posted photos and content that implied a private equity billionaire named Brian Sheth was romantically involved with the woman who appeared in the photographs. Bayside Advisory LLC holds the copyright on those images, and used the DMCA to demand that Twitter take down the photos, which it did. Bayside also sent Twitter a DMCA subpoena to identify the user. Twitter refused and asked a federal magistrate judge to quash Bayside's subpoena. The magistrate ruled late last year that Twitter must disclose the identity of the user because the user failed to show up in court to argue that they were engaged in fair use when they tweeted Bayside's photos. When Twitter asked a district court judge to overrule the magistrate's decision, EFF and the ACLU Foundation of Northern California filed an amicus brief in the case, arguing that the magistrate's ruling sidestepped the First Amendment when it focused solely on whether the user's tweets constituted fair use of the copyrighted works. [...]
EFF is pleased with the district court's decision, which ensures that DMCA subpoenas cannot be used as a loophole to the First Amendment's protections. The reality is that copyright law is often misused to silence lawful speech or retaliate against speakers. For example, in 2019 EFF successfully represented an anonymous Reddit user that the Watchtower Bible and Tract Society sought to unmask via a DMCA subpoena, claiming that they posted Watchtower's copyrighted material. We are also grateful that Twitter stood up for its user's First Amendment rights in court.
Re:Lawyers are the scum of the Earth (Score:4, Informative)
That's nothing, the really successful among them become judges or congress critters and such.
Re:Lawyers are the scum of the Earth (Score:4, Insightful)
The ones bad at law go to congress. If they were successful at law they wouldn't waste their time in politics.
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connections and inside and under table deals can be worth more than lawyer salary.
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Agreed - I shudder to think what sort of society would be founded by lawyers like Thomas Jefferson, John Adams and Alexander Hamilton. Surely hell on Earth.
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Yep. Americans, and conservatives in particular, seem to have no trouble seeing people suffer the consequences of their poor life's choices.
They also don't seem to have a problem with children suffering and dying because of their parent's poor life's choices. It's called social darwinism.
The irony is that those who seem to adhere the most to such an inhumane, heartless, compassionless philosophy, i.e. conservatives, are also the most likely to have the nerve to call themselves christian.
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It's a mystery.
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re gun violence, flooding the U.S. with guns is having the intended effect:
https://www.cdc.gov/nchs/press... [cdc.gov]
Notice the southern states and the midwest are awash in gun deaths and have the loosest gun laws. Those nice conservative people are getting on with the job of killing each other because they cannot manage their guns.
Re:Lawyers are the scum of the Earth (Score:5, Insightful)
Do you feel the same about the lawyers representing Twitter and the ACLU?
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Yes. Just because they are occasionally on the right side of justice doesn't make them any less bottom feeding scum.
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So, if you're ever accused of something you didn't do, criminally or civilly, you'll be representing yourself?
Let us know how that works out for you. If they let you have access to the prison library computers.
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Not having read things in detail, this doesn't seem so cut-and-dry just on its face. Presumably if the images were truly infringing in some damage-producing way, the user's identity would have to be revealed. Twitter in this case appears to be claiming that since just posting an image or two is likely fair use anyway, Twitter has the right under the 1st amendment to withhold the user's identity. (i.e. twitter has a right to maintain the source's anonymity, there is still no 1st amendment right to anonym
Re:Lawyers are the scum of the Earth (Score:5, Informative)
Twitter has the right under the 1st amendment to withhold the user's identity. (i.e. twitter has a right to maintain the source's anonymity, there is still no 1st amendment right to anonymity itself. This is actually twitter's freedom from compelled speech.)
Not quite: The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius " and "the Federal Farmer" spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment.
Re:Lawyers are the scum of the Earth (Score:5, Informative)
Not having read things in detail
I noticed. Lets talk about those details, one detail is that Bayside acquired the rights for the photos and registered for copyright AFTER the Twitter post. The lawyer representing Bayside said that the company was in the business of licensing out photos but interestingly enough the first time the company actually registered any photos was, as I said above, after the Twitter post.
When the judge presiding the case suggested that he maybe should hold an evidentiary hearing to find out more about Bayside the lawyer said that he preferred to have the subpoena squashed instead of having to defend who was behind Bayside which indicated that this was a prime example of a SLAPP suit. This whole case was about silencing a critic by using the court-system and the DMCA, nothing else, which Judge Chhabria hints at in his summary:
Bayside's reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker could assert their right to anonymity after their identity has been revealed; at that point, the damage will have been done. Fortunately, the statute does not compel (or permit) this result. Section 512(h) provides that "the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum." -paragraph 512(h)(6). This provision incorporates Federal Rule 45, under which a court must "quash or modify" a subpoena that "requires disclosure of privileged or other protected matter." Fed. R. Civ. P. 45(d)(3)(A)(iii). A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment. See, e.g., Signature Management Team, LLC v. Automattic, Inc., 941 F. Supp. 2d 1145, 1152-53 (N.D. Cal. 2013); In re Verizon Internet Services, Inc., 257 F. Supp. 2d 244, 263-64 (D.D.C. 2003), rev'd on other grounds, Recording Industry Association of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). The fact that the DMCA allows a potential copyright infringement victim to issue a subpoena to a service provider without first filing a lawsuit says nothing about whether courts should consider the interests of anonymous speakers in the same way they would in other situations.
If you want to generalize about a specific case without actually bothering to read about the details, don't.
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Yeah this thing about focusing on fair use being the problem seems wrong, how is this not fair use? To me the problem is that it's not being considered that.
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defamation claims - IANAL but I have been involved in defamation cases (as a witness). There are generally three considerations.
It has to be a materially false or at least evidenced statement at issue.
The party has to have suffered actual harm as a result.
The perceived credibility of the respective parties is usually a factor in multiple ways. Example for public figures the bar is much higher. That vagrant in the park screaming about you is considered by default less like to have harmed the claimant becaus
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Who else would you have write laws? Would you prefer Bob from the hardware store write laws?
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"They are the lowest, most discusting [sic] form of human life on the planet."
Not true, you forgot about Slashdot users, you insensitive clod.
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Even Gandhi?
A court, not THE court. (Score:3)
Until it hits SCOTUS it's a small step in the right direction. And
it could be that USA entities are arguing over someone outside the country. I like that.
Good (Score:5, Insightful)
Using subpoenas to cause someone to appear in court for the sole purpose of using the court to identify that person to then actively persecute them is extremely slimy and a waste of taxpayer dollars. Glad it has been upheld that it is Unconstitutional and inappropriate to use the courts in this manner. I don't always agree with the EFF and ACLU, but this is a good effort and outcome.
But did the court also rule on the 5th parts? (Score:2)
But did the court also rule on the 5th parts?
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It's a start. The DMCA was a gift to big media corps and a glove wearing rodent. I agree with the EFF on many more things than the ACLU but serious copyright victory will only come from a reset to it's original constitutional purpose providing for advancement of,.. you know, the thing.
Which bears the important question of: why have none of the people who Ghislain Maxwell trafficked children to been arrested?
What if the user posted from Starbucks (Score:2)
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I am curious, what 'principle' requires you to 'slight' edit quotes from legal reporting?
I'll allow you that I don't believe you are are attempting to misrepresent the information, because if you were its unlikely you would openly state you made edits. I am sure whatever changes you made are at least in your view somehow 'good faith' but I am a little curious as to why?
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Bit surprised (Score:1)