by Paul Alan Levy
Late last summer I described on this blog a disturbing decision by a federal magistrate judge that disregarded the consensus rule by which courts across the country have balanced the rights of plaintiffs claiming to have been wronged against the First Amendment right to speak anonymously in deciding whether to enforce subpoenas seeking identifying information. In the decision, the magistrate judge held that the Dendrite / Cahill line of authority, requiring actual proof of wrongdoing rather than just allegations, does not apply when the plaintiff is claiming copyright infringement, and hence decided that the international religious cult Art of Living could identify a former member who had been publishing a blog criticizing the cult.
But in an important decision issued late yesterday, District Judge Lucy Koh overturned the magistrate judge’s decision, decisively rejecting the theory that copyright cases are different and holding that when an alleged infringement takes place in the context of a discussion of an issue of public interest, full First Amendment protection applies and the allegations of copyright infringement must be tested to enure that they support the existence of a compelling interest that overcomes the First Amendment right to speak anonymously. Largely following arguments that we made in an amicus brief, joined by the ACLU and EFF as well as Public Citizen, as well as arguments by the Doe’s lawyer, Joshua Koltun, Judge Koh held that the reasons that support giving somewhat more limited scrutiny to subpoenas in mass copyright cases brought against alleged downloaders of copyrighted recordings or movies do not apply. (Opinion pages 7-11)
The decision bristles with interesting features and raises significant questions for future proceedings over subpoenas to identify anonymous Internet speakers. For example, Judge Koh warmly embraced the express balancing stage of the Dendrite analysis (pages 7, 8-9, 10-11), which some courts reject but which had previously been endorsed by a pair of decisions in the same district, the Northern District of California. Unlike many of the decisions endorsing an explicit balancing stage, Judge Koh squarely rested the outcome of the subpoena decision on that stage of the test, while suggesting without squarely deciding that Art of Living had likely presented enough evidence to establish a prima facie case of copyright infringement (pages 11-13). Judge Koh decided, however, that there was a realistic concern about the danger of retaliation against the Doe, who lives abroad, and that Art of Living did not have a strong interest in identifying the Doe immediately because of an unusual feature of this case — the Doe had waived service, filed an answer, and even responded to written discovery. In fact, Doe had moved for summary judgment in the case while at the same time seeking to quash the subpoena, and Judge Koh decided that there is no reason to identify the Doe at this time, while reserving the possibility that a different balance could well present itself if Doe were to lose on his summary judgment motion (page 15).
Another interesting aspect of the case is that Doe presented an anonymous affidavit in support of his motion to quash, and, at page 14 of her opinion, the district judge expressly gave consideration to the affidavit in deciding whether identification posed a danger of retaliation and would create a chilling effect. The judge said that the affidavit’s evidence was “not particularly reliable,” but she did consider it along with the self-evident nature of the First Amendment interests that could be affected by disclosure in the circumstances of the case.