DC Federal Court Prevents Movants from Proceeding Anonymously in Peer-To-Peer File-Sharing Copyright Case despite First Amendment Concerns

The District Court for the District of Columbia has upheld a magistrate's order preventing peer-to-peer  file-sharing defendants from proceeding anonymously. Hard Drive Prods. v. Does 1 - 1,495, 2012 U.S. Dist. LEXIS 137719 (D.D.C. Sept. 26, 2012) [enhanced version available to lexis.com subscribers]. The order, which prevented any defendant from continuing without identifying himself or herself, held that individuals "who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information."

The Electronic Frontier Foundation (EFF) filed a motion for emergency stay and reconsideration of the order. EFF argued that:

• the order did not consider defendants' First Amendment right to anonymous speech;
• by requiring defendants to publicly file motions to quash subpoenas or withdraw their motions, defendants were erroneously foreclosed from challenging subpoenas on First Amendment grounds without revealing their identities; and
• First Amendment protection extended to anonymous file sharing using BitTorrent protocol, even if such file sharing was alleged to infringe copyright.

Pending EFF's motion, all motions to quash were placed under seal.

Because BitTorrent file sharing was, "on some level," expressive activity, the District Court for the District of Columbia agreed that defendants were entitled to some First Amendment protection of their anonymity. However, citing Arista Records LLC v. Doe, 2008 U.S. Dist. LEXIS 34405 (D.D.C. 2008) [enhanced version available to lexis.com subscribers], the court noted that because defendants' expressive activity was alleged to infringe plaintiff's copyright, defendants' First Amendment right to anonymity was "exceedingly small."

To determine whether defendants' motions to quash should remain under seal, the District Court for the District of Columbia weighed plaintiff's need for defendants' identities against defendants' limited First Amendment right to anonymous file sharing. EFF unsuccessfully argued that the court should adopt the five-part test set forth in Dendrite Intern., Inc. v. Doe No. 3, 2001 N.J. Super. LEXIS 300 (App.Div. 2001) [enhanced version available to lexis.com subscribers]. Instead, the court applied the five-part test set forth in Sony Music Entm't Inc. v. Does 1-40, 2004 U.S. Dist. LEXIS 14122 (S.D.N.Y. 2004) [enhanced version available to lexis.com subscribers]. Because each of the five Sony factors supported disclosure of defendants' identities, the court held that plaintiff's need for defendants' identities to pursue its copyright infringement claims outweighed defendants' First Amendment interests in anonymity. Consequently, all sealed motions to quash were ordered unsealed.

Though EFF's motion to stay was denied, EFF was granted leave to file an amicus curiae brief on the First Amendment issue. The District Court for the District of Columbia concluded that:

EFF's proposed brief is helpful because it raises defendants' First Amendment right to anonymous speech, an issue not developed fully in the motions to quash filed by defendants nor discussed in the Magistrate Judge's December 21 Order. Because defendants' "First Amendment rights must be considered before the Court allows the plaintiff[] to override the putative defendants' anonymity by compelling the production of these defendants' identifying information," the Court will grant EFF's motion for leave to file and consider EFF's See [sic] First Amendment arguments.

(footnotes and citations omitted) 

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