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Can the First Amendment Provide Safe Harbor against claims of infringement?
Probably not. Here is one case from New York federal court which discussed this issue in the context of a Motion to Quash a Subpoena in a Malibu Media case (Case 2:15-cv-03504-JFB-SIL Document 36 Filed 08/23/16) - Malibu Media, LLC v. John Does 1-11, No. 12 Civ. 3810(ER), 2013 WL 3732839, at *5 (S.D.N.Y. July 16, 2013):
"The Supreme Court has “recognized that the First Amendment protects anonymous speech.” Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 562 (S.D.N.Y. 2004) (citing Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 200, 119 S. Ct. 636, 646 (1999)).
Moreover, “[i]t is well-settled that the First Amendment's protection extends to the Internet.” Id. (citing Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 2344 (1997)).
Nevertheless, “[t]he First Amendment . . . does not protect copyright infringement, and the Supreme Court . . . has rejected First Amendment challenges to copyright infringement actions.” Id. (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56, 105 S. Ct. 2218, 2228 (1985)); see also Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010) (“The First Amendment does not . . . provide a license for copyright infringement.”); Malibu Media, LLC v. John Does 1-11, No. 12 Civ. 3810, 2013 WL 3732839, at *5 (S.D.N.Y. July 16, 2013) (“Courts in this District have recognized that internet users have a limited First Amendment privacy interest in anonymous internet usage, including the use of peer-to-peer file-sharing networks, but this interest does not protect those who use their anonymity to infringe the copyrights of others.”)."
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If you are facing a copyright infringement action including cases involving Strike 3 Holdings, Malibu Media, Business Software Alliance, SIIA, Vero Software, CNC, Siemens, Autodesk, IBM, Joe Hand Promotions, G&G Closed Circuit Events, Zuffa, L.A. Gem & Jewelry, J&J Sports Production or Donahue Fitzgerald, call us to discuss. We can be reached at (877) 276-5084. We are a boutique copyright infringement firm with offices in San Diego, Santa Monica, Newport Beach, San Francisco, and Phoenix, Arizona.