December 18, 2007
Co-Blogger Identity Isn't Disclosed via 512(h), but Takedown Letters Are Copyrightable
By Eric Goldman
In re Subpoena Issued Pursuant to The Digital Millennium Copyright Action To: 43SB.Com, LLC, 2007 WL 4335441 (D. Id. Dec. 7, 2007)
We have long known that the DMCA expedited subpoena procedures for identifying copyright infringers (17 USC 512) could be abused. Even so, it is disturbing to see this particular example of abuse.
The background: A pseudonymous co-blogger ("Tom Paine") blogged a post containing some critical rumors about Melaleuca and its CEO to the 43rdstateblues.com blog. Melaleuca's lawyer sent a takedown letter to a blog administrator. Through an unknown process, another of the 43rdstateblues' pseudonymous co-bloggers, "d2," got his/her hands on the takedown letter. Like any good blogger, d2 posted the takedown letter to the blog.
Along the way, Melaleuca's lawyer obtained a copyright registration for the takedown letter. The lawyer sent a series of DMCA takedown notices predicated on the fact that the blog was hosting the copyrighted takedown letter. This takedown spam succeeding in forcing the blog's host to remove the takedown letter, and at some point the original Tom Paine post was redacted as well. Melaleuca now is seeking defendants to sue for infringing the takedown letter and sent a 512(h) subpoena to the blog operator, 43SB.com, LLC, seeking identifying information for d2 and Tom Paine. The LLC responded by trying to quash the subpoena on two grounds (among others): (1) the letter isn't protected by copyright, and (2) 512(h) does not apply to Tom Paine.
Melaleuca's choices here are troubling in at least two ways.
First, enforcing the copyright in the takedown letter is bogus. Takedown letters can satisfy the technical requirements for copyrightability under the statute, but this letter is so completely pro forma that it should barely clear the copyrightability hurdle (if it does at all). Further, republication of demand letters is so strongly infused with public interest that it should be clearly covered by fair use. Most problematically, the primary target all along appears to be Tom Paine, but because 230 may insulate other bloggers from liability for Tom Paine's post (a point I explore in this article), the plaintiff appears to be using copyright law to pressure the co-bloggers to turn over the griper. It's sad to see a plaintiff desperately deploy a junk copyright claim for these purposes.
Second, using copyright as the tool, the plaintiffs tried to sweep the griper Tom Paine into the subpoena that targeted d2 for the alleged copyright infringement of the takedown letter. The plaintiffs cannot connect Tom Paine to the infringement other than noting that d2 is a co-blogger, but they still tried to piggyback off the copyright infringement to force the identity disclosure. Fortunately, the court rejected this attempt to use the copyright subpoena as a backdoor to unmask the griper. This doesn't mean that Tom Paine's identity is safe; it just means the plaintiffs will have to work harder to get it.
(It caught my attention that an LLC operated the blog--a relatively rare risk management strategy for co-bloggers. See my Co-Blogging article for more on this).
The news is less favorable on the copyrightability front. The court treated the plaintiff's copyright registration as fully satisfying the 512(h) requirements. I understand why the court did this--after all, copyright registrations are prima facie evidence of copyrightability--but the court was overly deferential to the copyright registration. After all, this is a motion to quash the subpoena, and this letter is on its face thinly copyrightable. The court should more aggressively police the underlying merits of the plaintiff's claim.
One more interesting legal quirk: this ruling assumes that 43SB.com, LLC is covered by 512(h) at all. The procedure applies to "service providers," which includes all "providers of online services," and that should include a blog as well. However, 43SB.com, LLC does not appear to be seeking protection under the 512 safe harbors because they do not appear to have made the requisite filing with the Copyright Office. So can a service provider not seeking 512 protection be obligated to fork over information in response to the expedited subpoena procedure of 512(h)? This court assumes the answer is yes, and the statute facially appears to support that answer. However, I think this should be explored further given the lack of any quid-pro-quo for the service provider.
While the court didn't conclude that reposting the takedown letter constituted an infringement of the letter's copyright, this ruling surely will send chills down the spines of some bloggers. It's become standard for threatened bloggers to repost demand letters for the world to see. In fact, these repostings have social merit. In the modern era, copyright law is not "made" in the courtroom; it's made in the field when recipients make choices like deciding how to respond to demand letters. And with weak rights under 512(f) for bogus takedown notices, public scrutiny often is the only practical tool available to small players to fight back against widespread takedown notice abuse. But if demand letters are copyrightable, bloggers will keep those letters off the Internet and away from public scrutiny. As a result, this case threatens to curtail an important tool that bloggers had to fight back against abusive takedown demands.
For more commentary on this case, see Sam Bayard's thoughtful comments on this ruling and the Citizen Media Law Project's very helpful page on this incident with links to the underlying source material.
Some other discussion about IP rights in cease-and-desist letters:
* My blog post about cease-and-desist letters that claim to be "confidential" and copyrighted; I argue that courts should provide little copyright protection to such letters. Dan Solove's response.
* Greg Beck on the risks of posting a demand letter. This arose in the context of DirectBuy's claim of copyright in its demand letter. In response, Patry wrote about the assertion of copyright interests in demand letters as a copyright misuse. Sam Bayard's response to Patry.
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