First Amendment Protections for Anonymous Speakers Apply to Foreign Speakers

In In re DMCA Subpoena to Reddit, Inc., 2019 WL 2222041 (N.D. Cal. May 17), the Watch Tower Bible & Tract Society of Pennsylvania—the Jehovah’s Witnesses organization—claimed that a commenter on a Reddit forum for ex-Jehovah’s-Witnesses infringed Watch Tower’s copyrights in a couple of items. They sought a subpoena to discover the identity of the commenter (who had posted under the pseudonym Darkspilver); Darkspilver sought to block the subpoena, arguing that the First Amendment protected his anonymity, but Watch Tower argued that he lacked First Amendment rights because had had admitted that he lived from outside the U.S., and was presumably posting from outside the U.S. But the court rejected that argument:

For support, Watch Tower cites two cases evaluating different constitutional provisions – the Fourth and the Fifth Amendments. See Johnson v. Eistrager, 339 U.S. 763 (1950) (Fifth Amendment); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment).

In Johnson, the Supreme Court held that military prisoners captured abroad were not entitled to protection under the Fifth Amendment because they were: (a) enemy aliens; (b) had never been or resided in the United States; (c) were captured outside of the United States and held in military custody as war prisoners; and (d) were tried and convicted by a Military Commission sitting outside the United States for war crimes committed abroad…. In United States v. Verdugo-Urquidez, … the Court rejected the exterritorial application of the Fourth Amendment to a search conducted in Mexico of a Mexican resident and citizen’s homes.

In contrast, here, the constitutional right at stake is a different constitutional amendment – the First Amendment – and the asserted violation does not concern merely extraterritorial conduct. 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…. Although the exact percentage of subscribers to Reddit forum who live in United States is unknown, the only data before the Court suggests that a substantial number are United States residents. 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.

The court went on to conclude that the proper First Amendment solution here was to allow disclosure of Darkspilver’s identity only to plaintiff’s lawyers, who would be obligated not to disclose to their client. Though Darkspilver might have a strong fair use defense,

Nevertheless, Watch Tower has not yet had a chance to conduct discovery on its copyright claim or to engage an expert to conduct a market analysis. Perhaps Watch Tower, if provided the opportunity, could demonstrate that fewer people visited its website after Darkspilver’s posting. The Court is hesitant to deprive Watch Tower of the opportunity to develop its claim and supporting evidence before it has even filed suit.

In balancing the harms, while considering the fair use defense, the Court finds that they tip sharply in Darkspilver’s favor. However, the Court notes that Darkspilver’s concerns stem largely out of his fear that those in his congregation will discover his identity and shun him. If Reddit reveals Darkspilver’s identity to Watch Tower’s counsel, under an “attorney’s eyes only” restriction, then any harm to Darkspilver would be alleviated. This restriction would enable Watch Tower to pursue its copyright claim without causing harm to Darkspilver.

Therefore, the Court hereby grants in part and denies in part Darkspilver’s motion to quash. Reddit shall respond to the subpoena and provide the requested information to Watch Tower’s counsel. However, only attorneys of record in this matter may obtain information about Darkspilver’s identity. Watch Tower’s attorneys of record shall not to disclose Darkspilver’s identity to anyone else without approval in a Court Order from this Court. For example, 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.

[Footnote: Watch Tower claimed at the hearing that it plans to disclose Darkspilver’s identity to its forensic experts so that Watch Tower can determine how Darkspilver obtained confidential information in the chart and prevent further disclosure of that confidential information. This purpose is not related at all to a copyright issue, and for that reason, the Court rejects that form of disclosure.]

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. Moreover, Watch Tower is admonished that any violation of this Order will be sanctioned and that this Court retains jurisdiction over any potential violation of this Order.

EFF (Alex Moss) has more on this, arguing that the order should have entirely rejected the subpoena:

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 [to] 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 court’s approach, the [First Amendment] 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.

from Latest – Reason.com http://bit.ly/2EB70hX
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