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Receiving DMCA protections while remaining anonymous: Having your cake and eating it too

By J. DeVoy

A significant portion of the blogosphere – or at least what I read of it – acts under cover of anonymity.  I think this is important, especially given the candid statements these authors make about political matters and issues of public concern – particularly because these sentiments are far outside the mainstream.  In some cases, their voices cannot be heard elsewhere.  Society cannot grapple with the truth.  When this ultimately has career consequences, or some psychotic antagonist gets too close to the writer’s identity, he can pull the plug immediately, and then work to purge his writings from Google’s cache and the internet archive – leaving it as if he never existed.

Part of blogging is borrowing – ideas, links, inspiration – and sometimes copying outright, things like images and large chunks of copyrighted (or copyrightable) works.  While possibly frivolous or fair use, such copying could be infringement – and carry a frightening $150,000.00 price tag.  Wordpress and Moniker might not reveal your personally identifying information to some scrawny basement virgin who is outraged that you advocate cheating on your girlfriend, and provide specific instructions for doing it, that he demands your name so he can send you a very erudite e-mail.  Colorable legal demands with a screen shot and copyright registration or application, though, tend to go a lot farther, and an anonymous author’s cloak of anonymity is looking awfully threadbare.  This even bigger pisser comes if the writer is not even liable for the copying, and a full article or image is left by some unknown third party in the site’s comments.  (By the way, this is an excellent way to torpedo blogs you dislike.)  Another option is to create a special purpose business entity to run the blog, such as a LLC, but this requires money, attention, and a public filing with the secretary of state – things that defeat the purpose of anonymity, and even at just a few hundred dollars a year, are not worth the benefit to most anonymous bloggers.

Having established the value – and fragility – of anonymity, the question turns to how one can preserve it and inoculate against liability for copyright infringement.  Technically, this is impossible, and may carry a substantial penalty.  I do not recommend this, but it warrants consideration from an academic standpoint because copyright trolling is real and unlikely to simply disappear.

The Digital Millennium Copyright Act (“DMCA”) requires online service providers, including blogs, to register a designated agent with the copyright office to receive the statute’s protections. 17 U.S.C. § 512(c)(2).  The process for registering this agent, known as an “interim designation,” is governed by the Code of Federal Regulations, and available here.  While the DMCA was passed in 1998, we are still working off of interim regulations – but proposed final rules are pending, and open for comment under the APA until November 28, 2011.

This raises a few issues.  First, the designated agent must provide his or her full legal name, address, e-mail address and phone number, and for this information to be included on the designator’s website.  The precedent that has grown up around the DMCA requires only substantial compliance with the statute in order to enjoy its protections. See Wolk v. Kodak Imaging Network, Inc., 2011 U.S. Dist. LEXIS 27541 *18-19 (S.D.N.Y 2011) (noting appearance of DMCA agent’s contact information on website and granting safe harbor partly based thereon); Perfect 10, Inc. v., Inc., 2009 U.S. Dist. LEXIS 42341, *20-21 (C.D. Cal. 2009) (holding that failure to provide email address was insubstantial, but only where the agent’s name, address, and telephone number were published on website); see also H.R. REP. 105-551 (II) (1998), at 55-56 (giving examples of insubstantial departures, such as “misspelling a name, supplying an outdated area code if the phone number is accompanied by an accurate address, supplying an outdated name if accompanied by an e-mail address that remains valid for the successor of the prior designated agent or agent of a copyright owner”).

The question then becomes whether using an assumed name for the DMCA agent allows for substantial compliance.  There are two ways of approaching this: On one hand, so long as the address, phone number and e-mail address reach an actual person who can remove infringing content as required by statute, there’s a colorable argument for substantial compliance.  Moreover, there is a significant First Amendment interest in anonymity that should not necessarily be trammeled if the DMCA’s goals are still being effected, with take-down notices being received and honored by an agent, even if misnamed.  Simultaneously, how can there be substantial compliance when the agent is not who the agent claims to be?  This is not a case of the actual agent leaving, with someone else standing in his place and still reachable by the designation form’s contact information.  To the contrary, a false name for an agent gives rise to the inference that the designator was misrepresenting the agent’s true identity to the copyright office – potentially a felony and criminally false statement under 18 U.S.C. § 1001.

Now, an anonymous site could use an actual person as its DMCA agent, no pseudonyms needed.  This chips away at the author’s anonymity, though, and may bring unnecessary problems onto the DMCA agent.  Those of us who remember what transpired between Roissy and Lady Raine know not to underestimate the psychosis of e-stalkers, nor the damage they can cause.  The relationship between the DMCA agent and his acquaintances/friends, as seen on twitter, facebook or ascertained by other means, would be analyzed and reverse-eningeered until the anonymous blogger’s identity was known. (Or, worse, thought to be known, leading to a false allegation of authorship.)  In a more extreme context, this may arise in litigation – since the DMCA agent’s identity is known, and he or she surely had contact with the blog’s anonymous author, the agent is a subpoena target.

The same issues present themselves if one tries to designate an agent as a representative of the blog, whether anonymously or through a separate party under his or her true name.  Designating an agent under a false name calls into question whether the designation of a DMCA agent substantially complies with the statute, and is another avenue for the designator to risk felony conviction under 18 U.S.C. § 1001.  Having a third party act as the blog’s representative raises the same issues above, potentially jeopardizing anonymity and giving opponents a good target for harassment and discovery, in the event of litigation – or applying enough pressure that he or she crumbles.  Using someone else as a representative of an anonymous blog can create other headaches.  If the relationship is unclear, the third person’s representations as an authorized actor for the blog (an informal, unorganized entity as it may be) can be used to cloud any claims the author has to the blog’s copyrighted material, trademarks and associated goodwill, and other assets.  Even if the representative for the blog served no other purpose but to authentically designate a DMCA agent, the question of what relationship that person had with the blog should come to an inquisitive litigant.

There are narcissistic reasons not to use an outsider as a designator, too.  Namely, he or she will be accused of writing the blog.  All credit could be given to someone who may not be able to string a sentence together, but stepped in to serve a ministerial function.  Where’s the justice and glory in that?  Depending on the blog, too, one must wonder about the person who would volunteer to be the designator and to have his or her name publicly attached to controversial, politically incorrect content.  It works well for some people – but not the majority.

There are definite risks and problems associated with running an anonymous blog and trying to achieve safe harbor protections under the DMCA.  These risks, however, must be weighed against the sheer volume of service providers with registered agents.  Final rules for agent designation may close the loopholes that could make an anonymous registration with the copyright office feasible (even if legally improper), and possibly even substantially compliant with the DMCA.  The risks being an ineffective DMCA registration, though, and running up through criminal liability, likely do not warrant the effort required to attempt outwitting the DMCA.

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