A Tale of Two Anonymities: Attempting to Remove the Veil of Secrecy in Online Copyright Cases

"It was the best of times, it was the worst of times ...."

In Dickens' famous observation, a mere comma separates the good from the bad. However, when it comes to the law, facts, not punctuation, often mean the difference between the best of times and the worst of times. In dealing with online anonymity, two district courts recently fell on differing sides of the facts (or the comma, for the sake of Dickens). Against a copyright backdrop, one court authorized discovery of an anonymous online identity, while another court denied it.

You Can't Hide Behind the Embarrassment of a Dirty Movie

In Liberty Media Holdings v. Swarm Sharing Hash File, 2011 U.S. Dist. LEXIS 125512 (D. Mass. Oct. 31, 2011) [enhanced version available to lexis.com subscribers], John Does 1-38 (known only by their IP addresses) acted collectively to reproduce and distribute plaintiff's pornographic motion picture over the Internet. The reproduction and distribution involved the BitTorrent file transfer protocol.

In its copyright action, plaintiff subpoenaed the Internet Service Providers associated with the IP addresses, hoping to identify the defendants. Several Does moved to quash the subpoena, arguing that their anonymity should be protected because of the risk of coerced settlement and the public humiliation that might follow allegations of infringing hardcore pornography.

While there was no case law directly on point in the First Circuit, the court cited the Massachusetts case, Roe v. General Hospital Corp., 2011 Mass. Super. LEXIS 82 (Mass. Super. Ct. May 19, 2011) [enhanced version / unenhanced version available from lexisONE Free Case Law]. In Roe, the Massachusetts court stated that:

the proponent bears the burden of demonstrating the need to proceed anonymously, and that relief will be granted only in exceptional circumstances. The court held that determining whether a litigant may proceed anonymously requires balancing the "litigant's substantial right to privacy" with the "constitutionally embedded presumption of openness in judicial proceedings," noting that circumstances such as economic harm or mere embarrassment will not suffice to overcome the public's interest in disclosure.

Applying Roe, the court refused to quash the subpoena. The coercion assertion was rejected as purely speculative and not grounds for allowing the moving defendants to proceed anonymously. Likewise, the potential embarrassment or social stigma that Does 1-38 might face once their identities were released did not constitute an exceptional circumstance warranting anonymity.1

It Might Sound Like an Oxymoron, but if You Want to Stay Hidden, Try Speaking Out

On the other side of the comma falls the recent case, Art of Living Found. v. Does, 2011 U.S. Dist. LEXIS 129836 (N.D. Cal. Nov. 9, 2011) [enhanced version]. In Art of Living, the John Doe defendant, specially appearing under the pseudonym "Skywalker," was accused of publishing online the Breathe Water Sound Manual (BWSM). The BWSM's copyright is owned by the Art of Living Foundation (AOLF), an international organization dedicated to the spiritual teachings of Ravi Shankar.

The Art of Living court upheld John Doe/Skywalker's anonymity, finding that the First Amendment right to anonymous speech outweighed the need for discovery (at this time). John Doe/Skywalker published the BWSM on his blog as part of a campaign to debunk Ravi Shankar's claim to enlightenment and mystical "secret knowledge." The speech at issue merited First Amendment protection. Of importance:

  • Skywalker's blogs were critical and filled with heated discussion and criticism of the Art of Living Foundation and Ravi Shankar;
  • Skywalker's statements were constitutionally protected opinions; and
  • Skywalker's statements that the Art of Living Foundation was basically a cult and a sham amounted to speech on a "public issue."

The court distinguished the standard in Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) [enhanced version] (involving music downloads) from the standard/two-part test in Highfields Capital Mgmt. L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) [enhanced version] (involving online sardonic commentary, parody and irony). The "speech" at issue in Sony Music barely implicated the First Amendment at all, while Highfields addressed claims based on critical, anonymous commentary within the ambit of the First Amendment. Specifically, the court stated:

while Sony Music implicitly assumes that the only First Amendment interest at issue is the right to anonymity, Highfields is premised on the understanding that the content of the defendant's speech also has First Amendment value.

Highfields is consistent with Anonymous Online Speakers v. United States Dist. Court, 2011 U.S. App. LEXIS 487 (9th Cir. Nev. Jan. 7, 2011) [enhanced version / unenhanced version] and Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. Cal. 2010) [enhanced version / unenhanced version]. Both Ninth Circuit cases indicated that courts should consider the potential impact of a discovery request on chilling protected First Amendment activity.

Finally, in addressing the tension between copyrights and the First Amendment, the court stated that:

evidence of copyright infringement does not automatically remove the speech at issue from the scope of the First Amendment. While "the First Amendment does not shield copyright  infringement, ... "copyright law contains built-in First Amendment accommodations." [e.g., fair use]. In this case, the Court has acknowledged that "Skywalker appears to have published the [protected materials] ... as part of a larger effort to debunk the notion that the Art of Living Foundation and Ravi Shankar possess some 'secret higher knowledge.'" Although the Court need not determine at this stage if Skywalker's conduct is protected by fair use, the circumstances here create a substantial question as to whether the doctrine applies. The Court therefore finds that even if Skywalker's speech is not "political" or "religious," as he has argued, it at least raises significant constitutional issues.

(citations omitted)


[1] In a footnote, the court acknowledged that publicly identifying an individual as a homosexual might fall within the recognized exceptions to the general proposition that all parties to a lawsuit be named in the pleadings. However, Liberty Media, which involved the alleged infringement of homosexual pornography, only created an innuendo as to the defendants' sexual orientation. Nevertheless, the court noted that if the individual defendants became concerned about being publicly "outed" as discovery proceeded, it would entertain those arguments on an individual basis. The court expressed no opinion on whether homosexuality continued to be a protected privacy interest warranting anonymity. If such a privacy interest existed, the court said it would be careful to draw a line between the "mere embarrassment" of being publicly named in a lawsuit involving hardcore pornography, which did not provide a basis for anonymity, and concern over the exposure of one's sexual orientation. The court declined, however, to grant anonymity to all of the defendants based on the generalized concerns of public scorn expressed by only two of the thirty-eight defendants.

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