# EFF on Landmark Education's DMCA subpoena

EFF on Landmark Education’s DMCA subpoena, by Enric Teller. November 8, 2006. Interview with Kurt Opsahl of the Electronic Frontier Foundation. Note: In addition to the CC-BY-SA-3.0 license provided by Enric Teller for this work, all works by the Electronic Frontier Foundation are also licensed under the same free-use license, CC-BY-SA-3.0. Works by the Electronic Frontier Foundation are licensed under the Creative Commons Attribution-ShareAlike 3.0 Unported license, per EFF's Copyright Policy.
EFF on Landmark Education's DMCA subpoena
by Enric Teller
November 8, 2006
ENRIC TELLER
Hi, this is Enric. Today I am at the EFF. I will be interviewing Kurt Opsahl, on the Electronic Frontier Foundation's defense of the Internet Archive from Landmark Education's DMCA subpoena to identify the individual who uploaded a France TV3 video on the Landmark Forum.
KURT OPSAHL, ELECTRONIC FRONTIER FOUNDATION
This illustrates some of the issues surrounding DMCA subpoenas. That it allows for someone to issue a subpoena to identify a critic, which is troubling because it may tend to discourage people from posting criticism, even if that criticism does not violate any applicable law -- because their identity may be uncovered and they may be subject to either litigation or other disincentives.
And even if somebody sues you, and you have a meritorious defense, you’ll ultimately prevail -- there are a lot of costs associated with being in litigation, a lot of difficulties. This is one of the reasons why we step up and help people, without charge, to help them in situations where otherwise they might have had a very challenging time mounting a defense.
So you can have situations in which people are in the right, and are putting up constitutionally protected criticism, exercising their rights to speak anonymously, but may not have the resources to defend those rights.
ENRIC TELLER
Is there a problem with the DMCA law then, as far as being able to subpoena without a determination of copyright?
KURT OPSAHL
We believe that the proper thing to do is, that the court should insist that the subopoena-ing party show that they have a valid claim, before allowing the subpoena to proceed. And in this case, we believe that ultimately the court would see that there isn’t a valid claim.
But that’s an important check. You have a constitutional right to speak anonymously. Now that right is counterbalanced by a litigant’s right to know who they are litigating against and to have the court redress their grievances. And so courts balance that out.
And there have been many instances over the last decade or so, as the Internet has risen to prominence, in which people have attempted to identify somebody who posted a message on a message board, bulletin board, elsewhere on the Internet and they sought to find their identities. So courts have looked at those cases and determined that someone has to show, the subpoena-ing party, has to show that they’ve got a real case: that they couldn’t have gotten the information elsewhere, that they have a claim that is worthy of the court’s consideration -- and only when they are able to survive this test, can the subpoena proceed.
ENRIC TELLER
And the DMCA doesn’t require that, or does it?
KURT OPSAHL
This requirement actually stems from the Constitution. The First Amendment protects your right to speak anonymously. So regardless of whether it is written into a particular statute, the Constitution of course trumps any statutes, and would require the protection of anonymity via through a DMCA subpoena, a subpoena issued through the Federal Rules of Civil Procedure, the California Code of Civil Procedure, or other procedural laws.
ENRIC TELLER
So you’re saying the Constitution trumps the DMCA rule, ability to subpoena without proof of copyright?
KURT OPSAHL
The Constitution is the supreme law of the land and it trumps all statutes.
ENRIC TELLER
Now I would think Landmark would say that this impacts their business, that this is material and coursework that is internal to them, that they perform under certain privacy signatures for people going in, and that the revealing of copyright information impacts their ability to do their business.
KURT OPSAHL
Well, copyright law and fair-use takes into account the notion of market harm, that one of the factors that a court would look at in determining whether a use is a fair one, is the harm to the market for the original work.
And what courts are looking for, however, is whether the use is a substitute. Whether someone will use the infringing material instead of the original and thereby reduce the market for the original.
However if it is in the context of a criticism, a parody, something like that, where it is not a substitute for the original but rather any effect of the marketability of the original is due to the bitingness of the commentary, that is not a market harm that is at issue for the fair-use.
And it seems that no one would conceivably look at this French film, and say: ‘Okay, this has met my demand for Landmark Forums. That I don’t need to go to a Landmark Forum because I’ve gotten everything that I would presumably get from a Landmark Forum by seeing this.’
ENRIC TELLER
So what are the consequences if Landmark wins this, and what are the consequences if they lose?
KURT OPSAHL
Well I think that at this point we are hopeful that we will be able to have a resolution through discussions with Landmark. If that is not the case then we’d need to go to the court, and we’re confident that we’ll be successful.
I would encourage any video bloggers to also look at our legal guide for bloggers, primarily designed for written bloggers but many of the issues are applicable to video bloggers. And so they can better understand their rights, and if necessary defend them. Somebody gets a cease and desist letter or gets something that is attempting to chill them from exercising their free speech rights -- the legal guide for bloggers is a good starting point for understanding your rights.
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