Mass shooting survivors turn to an unlikely place for justice – copyright law

In a Nashville courtroom in early July, survivors of the 2023 Covenant school shooting celebrated an unusual legal victory. Citing copyright law, Judge l’Ashea Myles ruled that the assailant’s writings and other creative property could not be released to the public.

After months of hearings, the decision came down against conservative lawmakers, journalists and advocates who had sued for access to the writings, claiming officials had no right to keep them from the public. But since parents of the assailant – who killed six people at the private Christian elementary school, including three nine-year-old children – signed legal ownership of the shooter’s journals over to the families of surviving students last year, Myles said releasing the materials would violate the federal Copyright Act.

“Access to immediate information has … become a societal expectation which we all share. However, there are occasions when this immediate access to and demand for information must be balanced and moderated,” the judge wrote in the 60-page ruling.

The Nashville decision may be part of a new trend among the survivors of mass shootings and the families of those killed. In June, a survivor of the 2018 Marjory Stoneman Douglas high school shooting in Parkland, Florida, was granted copyright over the shooter’s name, thereby preventing its reproduction without permission.

The strategy, survivors say, comes first and foremost from a place of unspeakable trauma. “My family would love never to see the killer of my son in the press again,” said Tom Hoyer, whose son Luke was killed in Parkland in 2018. Controlling the distribution of a manifesto or taking a perpetrator’s name out of the headlines offers a sliver of protection from reliving the event, for which victims and their families are desperate, Hoyer explained.

But the approach is also a response to the frustration that survivors and victims’ families feel. The ways shooters have historically been portrayed in the media, they say, has been damaging; oversight over the distribution of harmful materials online – including video footage of deadly shootings – has been virtually nonexistent; and free rein over shooters’ names and intellectual property has enabled outside actors to profit from their reproduction.

Together, these elements speak to the need for greater care over how the stories of mass shootings are retold, survivors and advocates say, so that victims – rather than their killers – are remembered.

It’s been over 25 years since Coni Sanders’ father, teacher Dave Sanders, was shot and killed while protecting students at Columbine high school. She sees through-lines with her fight for justice following the 1999 massacre and how victims’ families seek retribution today.

“There was a lot of litigious healing,” said Sanders, whose family – together with other victims and survivors – sued the parents of the two shooters as well as the local sheriff’s department. “That was the only power that we had.”

Decades later, Sanders feels unwavering pain when confronted with anything to do with her father’s killers. A news headline in her inbox or a magazine cover glimpsed in the grocery store prompts a visceral reaction. “It’s like being hit with a spike, randomly, over and over again,” she said.

So when she sees others turn to copyright as a way to keep perpetrators out of the limelight, Sanders understands: “There is a collective desperation, for the sake of each other and of others, to find a way to tamp down the details, the narratives, to protect ourselves, our families and our future communities.”

The urge to silence the perpetrators of mass shootings is common among victims’ families, explained Jeffrey Swanson, professor of psychiatry at Duke University. Survivors and victims’ families can be motivated to do anything possible to keep the person who caused them unthinkable pain from public view, he said.

“There is a desire to avoid rewarding – in any way – the mass killer, even posthumously, and that includes uttering their name in public or in print,” he said.

Keeping a shooter’s name or creative property – such as a manifesto or recording – out of the public eye does more than protect the emotional wellbeing of those impacted, experts say. It also helps to prevent future massacres.

That such material can serve as inspiration has been widely documented, explains Rachel Carroll Rivas of the Southern Poverty Law Center’s Intelligence Project. “Those videos just have an inherent dangerous factor, and they really shouldn’t be allowed to spread across the internet,” she said.

The danger stems from the fact that shooters, research has shown, often desire attention, recognition and notoriety. “It is a major motivating factor, so it is important not to give a platform to people who have committed these horrendous acts,” said David Pucino of Giffords Law. “High-profile coverage, especially that [which] mentions a person by name, has the potential to elevate them and to inspire copycat acts.”

In the aftermath of Columbine, gruesome details of the shooting were widely publicized, and video footage recorded by the killers – in which they discussed their planned massacre – was leaked. Investigations have since shown that more than 100 attacks and plots have been influenced by the 1999 massacre.

“That wide dissemination of information led to a fascination and this morbid curiosity and following of those boys,” Sanders said. “I wish that we had come up with some way to limit the fascination.”

Copyright may serve as that tool – even if preventing copycats is not the primary motivation. Swanson said: “You can do something cathartic because you feel so helpless, and at the same time, it could have a benefit for a larger circle of concern – which is that somewhere, there’s going to be some kid who will not have access to it who would otherwise have taken the wrong lesson from it.”

That means that the civil litigation strategy has both “an individual impact and a societal impact”, said Rivas.

The copyright approach can also prevent outside actors from profiting from mass shootings – a phenomenon that victims’ families say is widespread.

“It’s just egregious on so many levels that there are persons and entities unrelated in any way, shape or form to the victim of a mass shooting that are making money off of that victimhood,” said Lori Haas, advocacy manager at the Johns Hopkins Center for Gun Violence Solutions, whose daughter Emily was critically injured in the 2007 mass shooting at Virginia Tech. “It’s taking the worst kind of advantage of a family’s pain.”

In some cases, profiting from a mass shooting is done through deliberate scams – fraudulent GoFundMe campaigns or anonymous e-shops selling commemorative merchandise. In others, income is generated from clicks and views, which yield advertising revenue.

For Andy Parker, the intractability of violent content online has created nothing short of a nightmare. Parker’s daughter Alison, a Virginia news anchor, was shot and killed on live TV in 2015. The footage has since circulated on countless websites and has garnered tens of thousands of views.

“It was recorded for all the world to see, and then it took on a life of its own,” he said.

Despite YouTube’s policy against content that shows moments of death, Parker has been unsuccessful in his efforts to have the footage removed. He says that is because Section 230 of the Communications Decency Act protects social media companies from being held liable for content posted on their platforms – unless that content breaks federal law. “The only thing you can nail anybody on online or in social media is copyright infringement,” he said.

But Parker doesn’t own the rights to the footage of his daughter’s murder. Those belong to Gray Television, the company that bought Alison’s employer – and they are unwilling to release them to Parker.

“It took me a while to realize and to learn that there was not a damn thing I could do about it,” Parker said.

The copyright approach is far from foolproof. Its novelty in the gun violence space means that it remains unclear how those who violate it will be penalized – if at all. In September, a conservative newspaper that was one of the plaintiffs in the Nashville case defied Myles’s ruling, leaking 90 pages of the shooter’s writings online.

Copyright also gets sticky in cases involving multiple victim parties – an inevitability with mass shootings.

If only one family takes ownership of a shooter’s name, that family takes on the role of gatekeeper, explained Parkland’s Hoyer. Issues may arise if the gatekeeper agrees to grant an external party the right to use the shooter’s name without consulting other victims, for instance, or if the owner accepts payment for distribution rights and does not distribute those funds to fellow survivors or victims’ families.

“There’s a moral hazard to that kind of an agreement,” Hoyer said.

But Hoyer also recognizes that the pursuit of justice looks different for everyone.

“We’re doing what we’re doing because we think is right, and they’re doing what they’re doing because they think it’s the right way to go,” he said. “And I hope that one or more of us is correct.”

After Columbine, Sanders recalled how victims’ families disagreed on how to handle the tapes produced by the shooters. While some wanted them to be released, others wanted them under lock and key.

Looking back, Sanders now sees how her definition of justice has evolved from a place of anger and blame to one of understanding and advocacy. As a therapist, Sanders has devoted her life to helping the perpetrators of violent crimes. She is even friends with Sue Klebold, the mother of one of the shooters who killed her father. (Klebold is one of the parties that Sanders’ family sued in the aftermath of Columbine, and she has become an outspoken advocate for youth mental health and gun control in recent years.)

But Sanders acknowledges that her ability to find peace is connected to the fact that the Columbine shooters died in 1999.

“There is no more reckoning with their existence,” said Sanders. “There is nothing more that they can do.”