St. Lawrence University abuses copyright

Apparently a group of anonymous student bloggers who are highly critical of their school have induced the school to file a complaint against them in NDNY district court seeking the identity of the students and damages.

While, the posts on the blog might be considered defamatory, the problem lies in the fact that the college is not suing for defamation. Instead it is suing for copyright infringement.

Here's a little background:

In both defamation and copyright infringement cases online, the plaintiff can subpoena the names of the individuals from an ISP. The tests for whether a court will issue the subpoena are drastically different, however.

In defamation cases, the court will balance the 1st amendment right to free speech with the government's subpoena power. This gets strict scrutiny. Additionally, the court balances the interest of the plaintiff in its lawsuit with the interest of of the defendants in maintaining their anonymity because "[a]nonymity is a shield from the tyranny of the majority." McIntyre v. Ohio Elections Commission (Supremes, 1995). Factors include: good faith, the information relates to a core claim, the ID of the individuals is directly relevant to the claim, and the information is unavailable from any other source.

Copyright is a whole other ball of wax. Pursuant to the Digital Milleneum Copyright Act § 512(h), a subpoena can be issued to the ISP to reveal the identity of the individuals. However, in the copyright context there is no First Amendment analysis. That's right, no strict scrutiny for free speech. No scrutiny at all. Instead, the plaintiff just has to swear that it has a good purpose and will only use the information for its copyright claim. All this can be done without the ISP notifiying the individuals (except in the Eastern District of Pennsylvania, which does require notice).

So, you can see why St. Lawrence University would rather file a copyright infringement claim than a defamation claim. To its credit, the bloggers did post photographs to which the college lays claim. However, it is obvious from the text of the complaint that it is not really concerned with the use of the photographs, but the offensive postings about its faculty and staff, i.e., defamation. As such, these students should at least get the benefit of a first amendment analysis before their identities are revealed. However, thanks once again to the DMCA that ain't gonna happen.

Via Copyfight!