Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns
Thursday, April 29, 2010
Second circuit approves subpoenas in P2P cases; finds 'no merit' in attacks on process
In a big win for the record labels, the Second Circuit today rejected a challenge to the subpoena process by which they have linked thousands of IP addresses to the names of alleged infringers. Ruling in a case called Arista Records LLC v. Doe 3, the court of appeals held that the labels' complaint -- which identified the IP addresses of the alleged infringers, the time of the alleged infringement, as well as the songs they were "sharing"-- contained allegations of sufficient specificity to overcome any of the subpoena target's purported privacy interests. And it brushed aside the accused infringer's argument that the First Amendment's protection for anonymous speech somehow gave him or her a license to infringe:
[T]o the extent that anonymity is used to mask copyright infringement or to facilitate infringement by other persons, it is unprotected by the First Amendment.
"[T]o the extent that anonymity is used to mask copyright infringement or to facilitate infringement by other persons, it is unprotected by the First Amendment."
But we knew that all along. This will take time to sort out.
Common sense indicates that government and the judiciary can't find that privacy "rights" should and will trump plain unlawful behavior.
Anyone who thinks their right to "privacy" is inalienable should visit a prison sometime. This finding is encouraging.
It sounds like you are reacting to a common sentiment on the internet, which is "labels are evil, infringers are good."
This isn't about whether copyright infringement is illegal. That discussion has been done to death.
This is about the fact that I can log on to my neighbor's unsecured wi-fi network, download a ton of copyrighted content, and send them to court. Do you think that is encouraging?
Keep in mind, my neighbors probably have no desire for me to do this. They probably don't even realize that their network is unencrypted, or that anyone could log onto it and violate the law in their name.
You seem to be asserting that this is a victory for law abiding citizens. It is not.
Ben, I'm not sure I'd agree with your characterization. Far from "brushing aside" the First Amendment issue, the court specifically endorsed the view that online anonymity is entitled to protection under the First Amendment, but that the relevant showing had been made here (endorsing J. Chin's Sony v. Does ruling). EFF, ACLU, Public Citizen and others have been fighting for court recognition of this qualified First Amendment privilege for years, and I think this ruling is the first court of appeals affirmance of that standard. So, for those who think the First Amendment should afford protection online, you're welcome.
I humbly submit that your remarks have missed the point. Anonymity itself is not really granted first amendment protection (as you suggest). IF that were the case (and it is NOT) then one would be granted the (first amendment) right to anonymously board an airplane. Allow me to explain in the copyright context.
I believe a more accurate characterization would be that anonymous SPEECH is granted first amendment protection (just as speech shouted from the public in full view of the world is granted protection). I submit that the real issue here is not the anonoymous or non-anonymous character of the speech, but the character of the "speech" itself. And here the "speech" amounted to copyright infringement. Copyright infringement is not the type of speech protected by the first amendment (other than, of course, where it intersects with the fair use doctrine and the idea/expression dichotomy). See e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)(rejecting First Amendment defense to copyright infringement action against magazine for printing unauthorized presidential memoir excerpts); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979)(“The first amendment is not a license to trammel on legally recognized rights in intellectual property.”); Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 220 (S.D.N.Y. 2000)(“[T]he First Amendment does not shield copyright infringement”).
In short, there is no First Amendment right to engage in unlawful or illegal activities and then hide the evidence of ones misdeeds. Although the First Amendment has been interpreted to grant a right of anonymous speech, the relevant case law granting such a right has been largely limited to speech that constitutes traditional political discourse and related social commentary. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) the Supreme Court stated that “[a]nonymity 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 – and their ideas from suppression – at the hand of an intolerant society.” See id. at 357. Although the Court ultimately upheld the petitioner’s First Amendment rights in McIntyre, it also noted that “[t]he right to remain anonymous may be abused when it shields fraudulent conduct.” See id.
I hope this adds fruitfully to the already great discourse that takes place on this website.
Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.
Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.
Ben Sheffner is a copyright and anti-piracy attorney in Los Angeles. He has previously held positions in-house at NBCUniversal and Fox, as an associate at O'Melveny & Myers LLP, and as Special Counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other IP issues. A former Co-Chair of the Media Law Resource Center's California Chapter, Ben served as a law clerk to Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit from 2000-2001.
Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.
This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.
Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.
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Posts
"[T]o the extent that anonymity is used to mask copyright infringement or to facilitate infringement by other persons, it is unprotected by the First Amendment."
ReplyDeleteBut we knew that all along. This will take time to sort out.
Common sense indicates that government and the judiciary can't find that privacy "rights" should and will trump plain unlawful behavior.
Anyone who thinks their right to "privacy" is inalienable should visit a prison sometime. This finding is encouraging.
Anon:
ReplyDeleteIt sounds like you are reacting to a common sentiment on the internet, which is "labels are evil, infringers are good."
This isn't about whether copyright infringement is illegal. That discussion has been done to death.
This is about the fact that I can log on to my neighbor's unsecured wi-fi network, download a ton of copyrighted content, and send them to court. Do you think that is encouraging?
Keep in mind, my neighbors probably have no desire for me to do this. They probably don't even realize that their network is unencrypted, or that anyone could log onto it and violate the law in their name.
You seem to be asserting that this is a victory for law abiding citizens. It is not.
Ben, I'm not sure I'd agree with your characterization. Far from "brushing aside" the First Amendment issue, the court specifically endorsed the view that online anonymity is entitled to protection under the First Amendment, but that the relevant showing had been made here (endorsing J. Chin's Sony v. Does ruling). EFF, ACLU, Public Citizen and others have been fighting for court recognition of this qualified First Amendment privilege for years, and I think this ruling is the first court of appeals affirmance of that standard. So, for those who think the First Amendment should afford protection online, you're welcome.
ReplyDeleteMr von Lohman:
ReplyDeleteI humbly submit that your remarks have missed the point. Anonymity itself is not really granted first amendment protection (as you suggest). IF that were the case (and it is NOT) then one would be granted the (first amendment) right to anonymously board an airplane. Allow me to explain in the copyright context.
I believe a more accurate characterization would be that anonymous SPEECH is granted first amendment protection (just as speech shouted from the public in full view of the world is granted protection). I submit that the real issue here is not the anonoymous or non-anonymous character of the speech, but the character of the "speech" itself. And here the "speech" amounted to copyright infringement. Copyright infringement is not the type of speech protected by the first amendment (other than, of course, where it intersects with the fair use doctrine and the idea/expression dichotomy). See e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)(rejecting First Amendment defense to copyright infringement action against magazine for printing unauthorized presidential memoir excerpts); Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979)(“The first amendment is not a license to trammel on legally recognized rights in intellectual property.”); Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 220 (S.D.N.Y. 2000)(“[T]he First Amendment does not shield copyright infringement”).
In short, there is no First Amendment right to engage in unlawful or illegal activities and then hide the evidence of ones misdeeds. Although the First Amendment has been interpreted to grant a right of anonymous speech, the relevant case law granting such a right has been largely limited to speech that constitutes traditional political discourse and related social commentary. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) the Supreme Court stated that “[a]nonymity 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 – and their ideas from suppression – at the hand of an intolerant society.” See id. at 357. Although the Court ultimately upheld the petitioner’s First Amendment rights in McIntyre, it also noted that “[t]he right to remain anonymous may be abused when it shields fraudulent conduct.” See id.
I hope this adds fruitfully to the already great discourse that takes place on this website.