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
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,”
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
“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.”