peaceful pete,
This seems to be the article
Copyright Infringement or Censorship?
A federal judge cast more doubt Thursday over a case that a Jehovah’s Witnesses group calls a copyright dispute, and that a digital rights group fears is a pretext for silencing detractors.
In last week’s hearing, U.S. District Judge James Donato of the Northern District of California raised an eyebrow over the continued legal avenues for Watch Tower Bible and Tract Society of Pennsylvania, the Jehovah’s Witnesses’ administrative organization that subpoenaed Reddit in January for the identifying information of a foreign user who reportedly infringed two of Watch Tower’s copyrights.
The user allegedly infringed the copyrights when he posted a one-page magazine advertisement encouraging readers to make online donations to the church, and a Watch Tower chart that describes its personal data gathering policies. Both the works have since been removed from the site.
“The poster is outside the territory of the U.S.; the church’s main concerns have been addressed by the takedown,” Donato said. “Isn’t that enough to call it a day?”
Let’s backtrack a bit. Earlier this year, Reddit declined to share the identity of the anonymous user. That person, identified only as Darkspilver, uses the forum to question the teachings of the church without fear of excommunication or “disfellowship” from the Jehovah’s Witnesses community he was raised in.
The subpoena seeks Darkspilver’s subscriber information, name, telephone number, address, email and IP addresses, citing infringement under the Digital Millennium Copyright Act. In June, U.S. Magistrate Judge Sallie Kim of the Northern District of California ruled that Reddit must reveal the identity of Darkspilver, but only to attorneys involved in the case. The internet freedom advocacy group Electronic Frontier Foundation intervened on behalf of Darkspilver to try and quash the subpoena, which the EFF argues is a thinly veiled attempt at uncovering the identity of a “leaker.”
So, before getting into the merits of the case during Thursday’s hearing, Donato had to determine whether Kim’s order stood.
EFF argued that Darkspilver never officially consented to a dispositive motion in front of Kim, which is required for a magistrate judge to have the authority to issue an order. That argument came despite Darkspilver’s attorneys submitting briefings and appearances in the case.
Known among my colleagues for being the most prepared person in the room, Donato rattled off several cases, including Roell v. Withrow, to suss out implied consent. In Donato’s opinion, “if you come to the party and drink the punch, you can’t say you weren’t a guest.” However, precedent says otherwise in Allen v. Meyer. “The circuit has expressly declared that simply submitting briefs and attorney arguments just is not enough,” he said. “I’m not sure if that’s the answer, but that’s the answer I’m left with.” Donato subsequently suggested taking Kim’s ruling as a recommendation instead of an order.
With that out of the way, the judge returned to the copyright argument. Watch Tower’s in-house counsel Paul D. Polidoro said the church became a digital media organization virtually overnight. Polidoro claimed the infringing posts drew traffic away from the organization’s website and Watch Tower had a right to protect its site, an official conduit for Jehovah’s Witnesses teachings.
“That’s what the notification and takedown process is for,” Donato said.
Alex Moss, an EFF staff attorney representing Darkspilver, said the DMCA could be invoked to unmask other anonymous internet posters who won’t have the EFF or anyone else defending them if Donato rules in Watch Tower’s favor. However, Moss said Donato’s questions had her leaving in a good mood.
“We weren’t surprised that Judge Donato came to the hearing extremely well-prepared, but we were pleasantly surprised by the indications he gave, particularly with respect to procedural questions about the appealability of the magistrate judge’s order and the practical necessity of Watch Tower getting access to client’s name now that the images at issue have since been removed from Reddit,” she said. “We hope that Judge Donato’s decision will take into account the nature of our client’s fair use and the harm that compelling Reddit to disclose a user’s identity under these circumstances would do for the anonymous fair use commentary.”