DMCA subpoena to learn identity of anonymous Reddit poster quashed
By Robert B. Barnett Jr., J.D.
The anonymous poster made fair use of copyrighted Jehovah’s Witnesses materials in order to criticize the church’s fundraising efforts and therefore did not infringe.
In an action under the Digital Millennium Copyright Act (DMCA)—in which Watch Tower Bible and Tract Society of Pennsylvania (headquarters of the Jehovah’s Witnesses) had obtained a subpoena to learn the identity of an anonymous church member called Darkspilver, who criticized the church’s fundraising efforts in a post to social news aggregation website Reddit—the federal district court in San Francisco has agreed to quash the subpoena because Darkspilver made fair use of Jehovah’s Witness materials to illustrate his point. Given that Darkspilver did not infringe the church’s copyrighted works, no basis existed in the DMCA for a subpoena to compel disclosure of his identity. In reversing a magistrate judge’s ruling that Reddit could reveal Darkspilver’s identity, but only to the church’s lawyers, the district court ruled that it had the procedural right to review the magistrate judge’s decision—rather than require Reddit to appeal the decision to the Ninth Circuit—because Reddit, unlike the church, never consented to have the matter fully resolved by the magistrate judge (In re DMCA Subpoena to Reddit, Inc., March 2, 2020, Donato, J.).
Background. Darkspilver is an anonymous foreign citizen. Although still a member of Jehovah’s Witnesses, he (or she?) joined a Reddit discussion thread directed to former Jehovah’s Witnesses. To criticize the church’s fundraising efforts, he posted an image from the back cover of an issue of the church’s "The Watchtower" magazine, which contained a solicitation for online donations. Darkspilver apparently felt that a solicitation for online donations ran counter to the church’s claim to base its practices entirely in the Bible. He also posted a chart, which summarized the church’s data-collection practices, to alert church members to the wide range of information that the church was collecting from members.
The church filed a proceeding in California federal court under the DMCA to obtain Darkspilver’s identity. The action consisted only of an effort to learn the identity; it did not allege copyright infringement or otherwise seek damages. After filing the action, the church filed a take-down notice with Reddit, as permitted under the DMCA. Reddit took down the ad, and Darkspilver voluntarily removed the chart. The church then asked the court to issue a subpoena to Reddit under the DMCA to identify Darkspilver. As a part of the subpoena process, the church consented to have a magistrate judge handle all proceedings.
The magistrate judge, balancing copyright and First Amendment considerations, ultimately granted the subpoena, but with a twist—only the church’s lawyers could learn Darkspilver’s identity. The magistrate judge balanced the likely harm to Darkspilver (ostracism) against the harm to the church (loss of visitors to church website). The magistrate judge actually found fair use in Darkspilver’s use of the documents, and that the balance of harms weighed "sharply" in Darkspilver’s favor, but he nevertheless granted the subpoena to balance the harms, with the proviso that only the church’s attorneys of record could learn the name. Once the subpoena was served on Reddit, the Electronic Frontier Foundation filed a motion to quash the subpoena on Reddit’s behalf, which Reddit joined.
Appeal. The first issue for the court was the procedural question of whether the Electronic Frontier Foundation and Reddit could file the motion to quash in this court or whether they had to seek review of the magistrate’s decision in the Ninth Circuit. The church argued that they had to appeal it to the Ninth Circuit. The court concluded that the magistrate judge’s decision was dispositive, rather than non-dispositive, because the issuance of the subpoena was the only matter before the court. If dispositive, the matter could be fully disposed by a magistrate judge only with consent from both parties. The court then determined that, while the church had consented, the Electronic Frontier Foundation and Reddit never did. As a result, the magistrate judge’s decision in the case would be treated as any typical magistrate judge’s finding—subject to review by the district court. The court, therefore, agreed to consider the motion to quash.
Motion to quash. In assessing the merits of the original motion for the subpoena, the court noted that the magistrate judge combined elements of free speech with elements of copyright infringement to reach his decision. Such an analysis, the court said, was unnecessary because copyright law already incorporates constitutional considerations into its provisions. As a result, the court said, it would decide the matter strictly on copyright infringement grounds, particularly whether Darkspilver’s use was a fair use of the copyrighted material.
Fair use. Fair use considers four factors: (1) the purpose and character of the use, including commercial use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the effect on the market. On the first issue, the court concluded that Darkspilver’s use was transformative, that is, he used the content for an entirely different purpose than the church used the content (criticism vs. fundraising). Alteration of the content is not required for transformation to occur. Furthermore, importantly, Darkspilver did not use the content for any commercial purpose. On the second issue, the court concluded that the documents were factual rather than creative, which weighed in favor of finding fair use. Also weighing in favor of fair use was the fact that the ad had been published before the adapted use was made. On the third issue, the court noted that Darkspilver used only that portion of the copyrighted magazine and the chart that he needed to make his point, which again weighed in favor of fair use. On the fourth issue, the most important consideration, the court determined that no damage to the market for the copyrighted work occurred. A big difference exists between biting criticism that suppresses demand and copyright infringement that usurps it. A parody can kill the original without causing copyright injury. The magistrate judge’s concern that the comments might reduce traffic to the website, therefore, was misplaced. In any event, no evidence was ever produced that the Reddit posts actually slowed traffic to the church’s website, which yet again weighed in favor of fair use.
The court concluded that Darkspilver made fair use of the ad and the chart and that no basis existed for a subpoena to compel disclosure of Darkspilver’s identity, even to the lawyers. The motion to quash the subpoena, therefore, was granted.
This case is No. 3:19-mc-80005-SK.
Attorneys: Paul Polidoro for Watch Tower Bible & Tract Society of Pennsylvania. Joseph Charles Gratz (Durie Tangri LLP) for Reddit, Inc. Alexandra Helen Moss for Electronic Frontier Foundation.
Companies: Watch Tower Bible & Tract Society of Pennsylvania; Reddit, Inc.; Electronic Frontier Foundation
MainStory: TopStory Copyright TechnologyInternet CaliforniaNews
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