There’s No Copyright Exception to First Amendment Protections for Anonymous Speech

Some people just can’t take a hint. Today’s perfect example is a group of independent movie distributors that have repeatedly tried, and failed, to force Reddit to give up the IP addresses of several users who posted about downloading movies. 

The distributors claim they need this information to support their copyright claims against internet service provider Frontier Communications, because it might be evidence that Frontier wasn’t enforcing its repeat infringer policy and therefore couldn’t claim safe harbor protections under the Digital Millennium. Copyright Act. Courts have repeatedly refused to enforce these subpoenas, recognizing the distributors couldn’t pass the test the First Amendment requires prior to unmasking anonymous speakers.  

Here’s the twist: after the magistrate judge in this case applied this standard and quashed the subpoena, the movie distributors sought review from the district court judge assigned to the case. The second judge also denied discovery as unduly burdensome but, in a hearing on the matter, also said there was no First Amendment issue because the users were talking about copyright infringement. In their subsequent appeal to the Ninth Circuit, the distributors invite the appellate court to endorse the judge’s statement. 

As we explain in an amicus brief supporting Reddit, the court should refuse that invitation. Discussions about illegal activity clearly are protected speech. Indeed, the Supreme Court recently affirmed that even “advocacy of illegal acts” is “within the First Amendment’s core.” In fact, protecting such speech is a central purpose of the First Amendment because it ensures that people can robustly debate civil and criminal laws and advocate for change. 

There is no reason to imagine that this bedrock principle doesn’t apply just because the speech concerns copyright infringement – —especially where the speakers aren’t even defendants in the case, but independent third parties. And unmasking Does in copyright cases carries particular risks given the long history of copyright claims being used as an excuse to take down lawful as well as infringing content online. 

We’re glad to see Reddit fighting back against these improper subpoenas, and proud to stand with the company as it stands up for its users.