Impact Litigation in Action: Building the Caselaw Behind a Win for Free Speech

A recent District Court decision in In re DMCA 512(h) Subpoena to Twitter, Inc. is a great win for free speech. The Court firmly rejected the argument that copyright law creates a shortcut around the First Amendment’s protections for anonymous critics. In the case, a company tried to use copyright law and the DMCA processes to force Twitter to identify an anonymous critic of private equity billionaire Brian Sheth. Twitter thankfully resisted the demand for its user’s identity, and EFF filed a supporting amicus brief.

The win is not only good for those who would speak up against the powerful, it’s also a great example of how EFF’s patient work in the courts over many years can pay off. In fact, we were pleasantly surprised by the number of cases that EFF has been involved in that were relied upon by the Court.

By our count, the order cites eight cases that EFF participated in, either as counsel or as amicus curiae—and quite a few where we filed multiple briefs, participating at multiple levels of the judicial system. Not bad for an opinion that runs barely 15 pages long. The cases stretch across the issues, with several on copyright-specific John Doe cases (In re Verizon; In re DMCA Section 512(h) Subpoena to Reddit), a couple on copyright itself (Google v. Oracle; Kelly v. Arriba Soft), and some focusing on fair use (Lenz v. Universal; Dr. Seuss v. ComicMix). There are also a couple where we helped behind the scenes but ultimately did not file a brief. 

All in all, the case cites over 17 years’ of work by EFF lawyers who helped to carefully build the legal foundations that the Court relied upon. The earliest cases cited here by the Court were decided in 2003, and the latest were in 2021. We weren’t alone in this—our friends at Public Citizen had a huge role in developing this caselaw, as did the ACLU, EPIC, and many private attorneys over the years. But EFF’s mark is unmistakable.

We’ve marked up the decision below with links to our work, so you can see for yourself.

Of course, the Court made its own decisions both in this case and in all of the others cited. And not all of the cases we participated in were ones where we won everything we wanted.

But this decision vindicates our commitment to helping the courts steer First Amendment, copyright, and anonymity law in the direction of supporting users who want to have their voice heard without being chilled or directly attacked, including by companies working to protect billionaires.

Brick by brick, case by case — and thanks to the stalwart support of EFF’s loyal members — we make justice.

(Thanks to EFF Legal Intern Molly Buckley for help with this blogpost)

Source: Impact Litigation in Action: Building the Caselaw Behind a Win for Free Speech

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