by Paul Alan Levy
Recently I discussed a case in which a web hosting service betrayed its customers by turning over identifying information about Thai emigres who posted criticisms of Thailand’s lèse majesté laws to a web site hosted by that service, who considered that even disputing the laws was an insult to the king. Although there is now a consensus rule requiring at least preliminary proof of wrongdoing and, in many states, an express balancing of interests before the right to speak anonymously can be taken away, when the ISP is a weak link, that rule provides no protection at all. In a recent case, however, it was a federal magistrate judge who was the weak link, failing failed to ensure sufficient protection for the free speech rights of foreign nationals who used United States Service providers for their commentary. Judge Harold Lloyd relied on another line of decisions applying relaxed scrutiny to subpoenas to identify alleged downloaders when they are sued for copyright infringement
The case involves Art of Living, an international religious cult that follows the teachings of an India-based guru bearing the name Ravi Shankar (not the sitar player). The main Does are former cult members, who live abroad but placed their blogs, “Leaving the Art of Living” and “Beyond the Art of Living,” on platforms offered by Californa-based companies. The blogs are full of vitriol against the Art of Living, and among other things the Wordpress blog featured copies of Art of Living’s teaching manuals, which were posted, apparently, to illustrate the commentary about how shallow the teachings are even though they are offered as great mysteries that are to be unveiled gradually as recruits pour more and more money into their membership.
A DMCA notice from Art of Living in Bangalore got the manuals removed from the blog, but two months later the “Art of Living Foundation,” the cult’s US branch, registered the copyright in one particular manual, the “Breath Water Sound” manual, then filed suit against the two bloggers as well as against several commenters on the blogs, accusing them of defamation but also alleging that one of the bloggers had infringed the copyright by posting that manual on its web site. Art of Living then pursued subpoenas to identify the two bloggers as well as the authors of several comments posted to the blogs. Represented by San Franscisco lawyer Joshua Koltun, the Does got the defamation claims dismissed because the statements were about the cult as a whole, not “of and concerning” the California chapter that had filed suit, and because they expressed opinions about Art of Living rather than making actionable statements of fact. (Basic libel law principles are summarized here).
Magistrate Judge Enforces the Subpoena
But Magistrate Judge Lloyd issued an opinion compelling Automattic to identify the Wordpress blogger based on the copyright claim. He held that even though the Doe had raised a substantial question about whether Art of Living could show that the temporary posting of its manual has caused it any actual harm, it was enough that Art of Living had alleged harm. The judge refused to follow the many decisions applying the “Dendrite” rule requiring proof of wrongdoing and explicit balancing, even decisions from the very same federal court, because the plaintiff was alleging copyright infringement and that, the judge thought, implicated a different test. That test was first articulated in Sony Music v Does, a case brought by several recording labels against hundreds of illegal downloaders using file-sharing systems.
Just as we at Public Citizen, along with colleagues at EFF and the ACLU, have pressed to have the Dendrite rule adopted throughout the country, we have also participated in a number of cases in which subpoenas sought to identify anonymous downloaders. The Sony opinion acknowledged the applicability of Dendrite, but at the same time suggested that although “the file sharer's speech is . . . entitled to some level of First Amendment protection,” that protection is quite “limited.” I have generally cited Sony as an example of Dendrite balancing, because balancing cuts both ways — sometimes in favor of the defendant and sometimes for the plaintiff. In Sony and its progeny of file-sharing cases, the “speech interest” implicated is deemed minimal.
Indeed, as a class of cases, lawsuits brought against anonymous users of peer to peer file-sharing systems to exchange copies of songs and movies have little in common with the typical case brought against Doe critics. Whatever one might think about the deterrence and punishment strategy employed by Hollywood and the music labels against downloaders, these plaintiffs are genuinely trying to obtain remedies for the wrongs that they allege in their complaints; we have yet to see a downloading case that was brought to try to out a critic or to seek extra-judicial, self-help remedies against the defendants once they are identified. Consequently, I think it is fair to say that although judges do insist on the provision of supporting affidavits in the file-sharing cases, they tend to accept some fairly superficial proofs in those affidavit, culminating in Judge Beryl Howell’s ruling in Call of the Wild Movie v. Does which enforced a subpoena to identify certain Doe defendants even though the plaintiff’s affidavit was so carelessly drafted that it actually failed to show that those Does had been engaged in downloading (see footnote 8 on page 24). It was as if Judge Howell’s attitude was, the Does are so likely to be guilty, why worry about the process?
Differences Between the Sony Music and Dendrite Approaches to Identification of Does
Although courts’ application of the Dendrite test has not been not perfect, I tend to think it has served both plaintiffs and defendants well over the past ten years. It leads to far more just results than the Sony test would do if Sony were generalized to apply to all Doe cases.
Sony calls for the provision of evidence to support the plaintiff’s claim, but otherwise it is sadly inadequate as means of distinguishing between cases in which the right of anonymous speech should be overcome and those in which anonymity should prevail, because unlike the neutral Dendrite test, which was crafted to ensure that defendants would often not prevail, the Sony test is overwhelmingly weighted in favor of disclosure.
Dendrite requires that each of several requirements be met – (1) notice and a chance to respond, (2) specification of the actionable words in their full context, (3) pleading of the elements of viable causes of action, (4) actual evidence to support those claims, and (5) a balancing stage. And each requirement can go against either the plaintiff or the defendant.
But Sony puts it differently — instead of a series of tests there is a series of factors: (1) a concrete showing or a prima facie claim of actionable harm, (2) specificity of the discovery request, (3) absence of alternative means of obtaining the subpoenaed information, (4) the need for the information, and (5) the Doe’s expectation of privacy. As played out in the cases those factors (except factor (1)) tend to support the plaintiff. For example, most discovery requests in the Doe cases we have seen are quite specific, although often quite broad, seeking many critics (factor 2); the identities can only be obtained by subpoena (factor 3); and in the typical case the plaintiff is generally seeking to identify the Does to serve them or obtain effective relief against them (factor 4). The fifth factor could weigh in the defendant’s favor, but courts don’t see it that way in cases applying the Sony test. Judge Lloyd, for example, said there was no expectation of privacy because the Does were engaged in copyright infringement. But that just begs the question of whether there has been a sufficient showing of evidence in support of plaintiff’s claim to warrant denying the right to remain anonymous. And if the expectation of privacy just turns on factor 1, what does it add to the analysis?
And even worse, if there are five factors to be weighed against each other (not five requirements), once it is clear that three or even four of the factors are biased in favor of disclosure, it follows that cases applying the Sony test should always come out in favor of the plaintiff. And that is, in fact, our experience. In Sony cases, the plaintiff always gets discovery. The Dendrite test, by contrast, allows either side to win; in fact, plaintiffs often prevail in their requests for discovery.
Moreover, Sony includes no notice requirement, and no Dendrite-style balancing of the interests favoring disclosure against the interests supporting continued anonymity. In a Dendrite case, as in a preliminary injunction case, strong equities for the Doe speaker might call for an increased level of showing likelihood of success on the merits. Except insofar as the decision to apply the weaker Sony test instead of the often-tougher Dendrite test itself reflects a balancing decision based either on the nature of the speech activity (as Sony and its progeny reflect) or based on the theory that some causes of action should give the plaintiff a stronger position (Judge Lloyd’s apparent position), Sony has no explicit balancing stage.
Supporting the Doe Defendant’s Objections
The Doe has sought review of the magistrate judge’s ruling, and this week Public Citizen, the ACLU and EFF chimed in with an amicus brief supporting those objections. Our concern was with the magistrate judge’s determination that a plaintiff trying to identify its critics can escape the careful scrutiny demanded by the Dendrite line of cases by adding a copyright claim as well. Although the judges in the file sharing cases have generally been careful to specify that it is the fact that the plaintiffs are suing over indiscriminate downloading that makes the Does’ interest limited and the plaintiff’s interest especially high, some commentators have suggested that the Sony line of cases represent a more general “copyright” exception to Dendrite.
Yet, as we point out in our brief, courts have generally applied Dendrite analysis to other kinds of intellectual property claims (such as trademark suits), to suits over hacking, and other wrongs that are at least as deserving of a remedy as alleged copyright infringements. Indeed, defamation is also actionable, if there is defamation. The whole point of the Dendrite analysis is to provide a way of reconciling the interest in getting remedies for real wrongs with the First Amendment right to speak anonymously by providing procedure and substantive tests to ensure that the plaintiff likely does have a valid claim to pursue against the anonymous defendant. There is no reason why a company (or a religious cult) going after its critics should have to make less of a showing just because it chooses to invoke copyright law instead of defamation claims. And the danger of carving out causes of action that receive less scrutiny is demonstrated by the Art of Living case, where it is apparent that the copyright claim was manufactured to provide a basis for filing suit against a critic and seeking identifying information. Indeed, one of the plaintiff’s affidavits admits (¶ 63) that the only reason that the copyright was registered after the Doe took it down from his blog was that a lawyer explained how the registration could be used in court. It is especially disturbing in a case brought by a cult against former members who live abroad, and hence are particularly exposed to the possibility or retaliation in a location where they might not have the same legal protections that they would enjoy here in the United States.