Melaleuca v. 43sb - Frequently Asked Questions

Last updated 1/30/2008

What is this Melaleuca v. 43sb case?

Melaleuca used the pre-subpoena powers of the DMCA to subpoena 'd2' and 'Tom Paine'. The judge ruled in a split decision, sorta: Melaleuca didn't get to 'Tom Paine'. And I doubt they really wanted me.

Why is this case significant?

The case raises important first-amendment (veil of anonymity) and copyright (can one copyright a 'Takedown' letter) questions. Also, the uniqueness of DMCA's pre-subpoena powers lends itself to abuse. Ours is the first case known to have successfully brought any sort of challenge to these subpoenas.

What is the status?

Closed. Hearing on our Motion to Quash was in October 2007. Judge issued his ruling, it was signed off a few weeks later, and we submitted the subpoenaed data a few weeks later, just before Christmas 2007.

Where can I read more?

For the legal geek, I recommend Harvard's Citizen Media Law Center. has collected the documents associated with the case there.

For commentary, read Eric Goldman's blog on the case:

The case has also been mentioned on TechDirt and Slashdot (although erroneously: Dozier had NOTHING to do with our case)

Volokh Conspiracy mentions the case, and David Schwartz has comments there that analyze the fair use concept of 'Merger' quite well.

Joe Gratz discusses the case well, and disputing some Dozier doozies as he goes. Kudos.

Thanks to all of the above for their interest and support.

What started this?

In April, 2007, 43sb regular 'Tom Paine' put up a rumor about two public figures. One was Melaleuca CEO Frank Vandersloot. While we believed that the article was clearly about rumors and wasn't defamatory, Melaleuca hand-delivered a takedown demand to me. Rather than make a fuss, and after notifying the author of the rumor post, we pulled the article and posted Melaleuca's rather tame takedown demand in explanation. Since we were self-censoring, it seemed necessary to explain... I did so with a scan of the takedown letter.

What is at stake for 43sb?

Well, nothing currently. Our webhost, A Small Orange, pulled the offending image (of the Sheppard Letter) upon receipt of the DMCA infringment form. We've never put it back. Further, Melaleuca hasn't filed suit.

In a larger sense, 43sb could be liable for Actual damages (um... $0? What is a letter to us worth?), Statutory damages ($75k or $150k, I forget which), and plaintiff's legal fees (the sky's the limit).

Why is this case significant (long answer):

  • Fair Use: If someone accuses you of defamation and demands you retract the statement, your choices are to fight in court or to self-censor. In the latter case, saying "I retracted this article because X demanded I do so' raises many questions, so common online practice is to post the takedown demand and let the demand speak for itself. That's why we opted to do this: the letter itself wasn't inflammatory, but readers deserved to know that we had been pressured into silencing a writer on 43sb. Since just about *every* word in a takedown matters, it is arguable that a takedown should be exempt from copyright.

    Our attorney also pointed out that, much like recipes, there really aren't a lot of ways to write a takedown. A takedown is, in essence, a recipe for 'you did this. Stop it or we'll sue.' Since recipes are uncopyrightable, it seems reasonable to argue that similar process or demand documents might be blocked from copyright.

  • First Amendment: US courts recognize that an aspect of First Amendment protections are the freedom for anonymous parties to engage in public speech. Pamphleteers like Tom Paine have used anonymous speech for dissent, whistleblowing and otherwise getting information to the public without being forced to put careers or lives at risk of reprisal. By seeking 'Tom Paine's identity here on 43sb, Melaleuca seemed to be attempting to breech that veil via a back-door. They tried to use copyright law to get an uninvolved party's identity. The judge rejected that attempt.
  • Merchantability and damages: We're not sure exactly how our printing a scan of the takedown harmed their ability to sell that specific takedown letter elsewhere. Based on the intent of Copyright, the idea of 43sb owing Melaleuca damages seems absurd. Of course, we're also pragmatic enough to know that absurdity and law often coexist.
  • Pre-Litigation Subpoena: The DMCA allows copyright-holders to file subpoenas to get infringer identities for their lawsuits. This ability to file a subpoena before filing suit is unique. And it was abused in our case: Plaintiffs used the DMCA to go fishing for 'Tom Paine', who had nothing to do with the decision to post the takedown letter. A more egregious abuse of pre-litigation power would be possible: someone could use pre-litigation subpoena powers to get information without ever intending to file a copyright suit.

Here's a link to this FAQ, mostly to simplify copy/paste linking to it.

<a href="" >Melaleuca - 43sb Lawsuit FAQ</a>

Update history
Updated 1/30/2008: Link to Joe Gratz
Updated 1/29/2008: Link to Volokh Conspiracy