Copyright, Defamation, Bloggers, DMCA, Safe Harbors, Cease-And-Desists And Anonymity... Oh My!

from the we've-got-it-all-in-this-case dept

Well, here's a lawsuit that's got all the hot button issues going around these days, and yet has received very little publicity. Both Eric Goldman and Sam Bayard provide detailed legal breakdowns of what happened (and it may take a couple reads to grasp all the details), but let's try to summarize (some of it's good, some of it's bad). Basically, there was a site that has a few anonymous bloggers posting about politics. One of those anonymous bloggers, going under the name "Tom Paine" posted something accusing the CEO of a company of something that the CEO believed was defamatory. The company sent the blog a cease-and-desist letter, demanding that Paine's post be removed. That cease-and-desist letter was then posted to the blog by a different anonymous blogger, using the name "d2."

Here's where things get interesting. The company had registered the cease-and-desist with the copyright office, and then claimed that d2 was violating the copyright. We've seen a few other companies try to do this, and the idea that a boilerplate cease-and-desist letter is copyrightable is highly questionable -- and, even if it can be covered by copyright, there are strong fair use arguments for a blogger being able to post it. Unfortunately, though, the court felt otherwise, and decided that just because the company had registered the copyright on the document, that's all the evidence it needed to say the document was covered by copyright, and posting it could be considered infringement. If that stands, it could be disastrous to plenty of other bloggers (and the Chilling Effects archive) who post the ridiculous C&Ds they receive. Indeed, this ruling may prove to have a true "chilling effect" itself. Hopefully, though, a few more high profile cases of this nature will eventually have it made clear that posting a C&D is perfectly legitimate.

But, wait... there's more! In claiming copyright infringement, the company didn't just go after d2, but used the DMCA to subpoena for information on both d2 and Tom Paine -- even though Tom Paine had absolutely nothing to do with posting the cease-and-desist, and was accused of defamation, not copyright infringement. Luckily, the court saw right through that one, and decided that there was no reason to identify Tom Paine over the copyright issue. And, of course, we don't even get to touch on the questions concerning the rights to anonymity, as well as the safe harbors provided by the company that runs the blog concerning the speech of its users -- all of which are a part of the case as well. So, if you've got some time and want to dig through all the gory legal details, go ahead. But the summary is that there's a bit of good (in that a company that tried to misuse the DMCA to unmask an anonymous blogger was denied -- even if it's a bad sign that the company even thought to use the DMCA in this manner) and there's a lot of bad (in suggesting that it may be infringement to post a generic cease-and-desist). I would imagine this is not the last we'll be hearing of this case.

Filed Under: anonymity, anonymous blogging, blogging, copyright, defamation, dmca