"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.
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
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
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
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
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:
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:
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.
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.
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.
Lexis.com subscribers can explore/search Copyright Law resources on Lexis.com or access any of these Mathew Bender Copyright Law publications:
Non-subscribers can purchase Copyright Law
treatises/resources and Mathew Bender publications from the LexisNexis Bookstore
For more information about LexisNexis products and
solutions connect with us through our corporate