ASHLEY BELANGER - 10/18/2023
Kiwi Farms—a website credited with launching a range of targeted harassment campaigns, which Cloudflare considers its most dangerous customer ever—has remained online despite immense pressure to dismantle the website. But now it looks like Kiwi Farms may be facing its biggest threat yet. This week, an unexpected court ruling has shown "how copyright law could be a Kiwi Farms killer," tech law expert Eric Goldman wrote in his blog.
Goldman's blog analyzed a judgment issued Monday by the United States Court of Appeals for the 10th Circuit, which reversed a lower court's decision to dismiss a copyright lawsuit filed by Russell Greer. According to Greer, Kiwi Farms targeted him with a harassment campaign so extreme that he wrote a book to explain why the harassment should stop. Kiwi Farms then uploaded the book and a song that Greer wrote, allegedly sharing his copyrighted materials to encourage users to continue mocking Greer.
Greer's troubles with Kiwi Farms started when he sued pop star Taylor Swift in 2016. That's when Kiwi Farms users "began 'a relentless harassment campaign,'" Greer alleged, including “direct harassment via phone, email, and social media." Kiwi Farms' “schemes" allegedly "successfully got him fired from his workplace and evicted” and led to "the creation of 'false social media profiles that impersonate him with names ... that mock his physical and developmental disabilities.'” Kiwi Farms frequently targets people with physical and mental disabilities, Greer told the court.
In his complaint, which he filed on his own without legal representation, Greer alleged that the copyright infringement occurred after Greer "self-published and copyrighted the book, Why I Sued Taylor Swift and How I Became Falsely Known as Frivolous, Litigious, and Crazy, around November 2017." Greer said he wrote the book to help “explain his side of things" and "clear up the slander surrounding him.”
Those hopes were dashed when Kiwi Farms operator Joshua Moon allegedly posted a Google Drive link to a full copy of Greer’s book on the Kiwi Farms website. Greer promptly requested Moon to remove the link, but Moon "refused" and then published Greer’s requests onto Kiwi Farms to incite further mocking. Greer alleged that Kiwi Farms users also flooded review sites with bad reviews to hurt sales and created unauthorized audio versions of his book. Kiwi Farms' goal, Greer alleged, was “purposely" depriving Greer "of making money."
The conflict then further escalated when Greer released a song in 2019 called "I Don't Get You, Taylor Swift," which was uploaded within days to Kiwi Farms' site, where an anonymous Kiwi Farms user "encouraged its dissemination on the site 'so no one else accidentally gives Russell [Greer] money.'" Kiwi Farms users also allegedly exploited Greer's other copyrighted materials, including illegally uploading copies of two additional songs and a screenplay.
After it became clear that Moon would not respond to takedown notices, Greer sued Moon and Kiwi Farms in 2020, but his complaint was dismissed in 2021, when a court ruled that Greer had failed to show that the defendants had "intentionally caused, induced, or materially contributed to the direct infringement."
But the appeals court this week disagreed, deciding that Kiwi Farms' bullying behavior of posting Greer's takedown notices while refusing to take down infringing material "amounted to encouragement of Kiwi Farms users’ direct copyright infringement." Now, the case has been remanded to proceed in a lower court.
Greer's lawyer, Andrew Grimm, told Ars that “we think the opinion will contribute to a fairer and more just society, and we appreciate both the court’s time and the collegiality of our opposing counsel.”
Moon's lawyer did not respond to Ars' request to comment.
Will court uphold “dubious” ruling?
Greer's case will be revisited by the lower court, giving Greer a second chance to strike back at Kiwi Farms. Goldman said that a victory for Greer still seems unlikely, though, because the appeals court's "dubious" ruling appears to be inconsistent with copyright law, at least as Goldman has "taught the subject for 25+ years."According to Goldman, the appeals court needed to defend its definition of "encouragement" more "thoroughly" because it appeared that the court "conflated" two legal standards and "messed up long-standing contributory copyright infringement principles." Goldman wrote that under common law, contributory infringement requires a finding that Moon and Kiwi Farms "induce, cause, or materially contribute" direct infringement, not just “encourage" direct infringement, as the appeals court ruled. The court's reference to "encourage" comes from a different legal test, Goldman wrote, and that inconsistency alone could make upholding the appeals court's decision messy for the lower court.
Further, Goldman said that the notion that Kiwi Farms posting the takedown notice after failing to remove infringing content amounted to encouragement of direct copyright infringement is flawed. That logic would seemingly suggest that anyone hit with a copyright claim who posts a notice could be held liable for encouraging infringement.
"That cannot be the right legal standard, and I am reasonably confident no other court would reach that conclusion," Goldman wrote.
Goldman suggested that the court was stretching copyright law to punish Kiwi Farms for its mocking behavior, which he said makes the ruling a "dubious precedent on all points." He warned that people "should be careful celebrating copyright’s censorial powers." Though "few people would lament" Kiwi Farms' demise, this ruling could lead to censorship of "socially beneficial content."
"We definitely don’t want more copyright doctrines that facilitate pernicious removals," Goldman wrote.
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