Should Anonymity Be Dealt With Differently In Copyright Cases Than In Defamation Cases?

Free Speech

from the protecting-anonymity dept

We’ve talked in the past about how important it is, under the First Amendment, to protect anonymity. Courts have stated, time and time again, that the ability to speak anonymously is part of what’s protected under the First Amendment. That doesn’t mean that the right to anonymity is universal, but that for anonymity to be removed, certain standards must be met. For the most part, the law around this issue has sprung up around a variety of cases concerning defamation by anonymous people. From there, standards have been built over what it takes to unveil the speaker behind anonymous comments. While not universally accepted, it’s becoming pretty widespread that courts will use “the Dendrite rule” to establish if anonymity can or should be removed from speech. Dendrite has five guidelines for judges:

(1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster’s allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) “the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity.

These seem to be pretty good guidelines that create a fair framework for a court to work from to make sure that anonymity isn’t taken away when it doesn’t make sense. But should this only apply to defamation cases? Paul Alan Levy points us to a case in which a plaintiff is using a copyright claim to expose some anonymous bloggers, getting around the Dendrite rules by pointing to a ruling in one of the RIAA’s lawsuits against file sharers, in which a court set forth a much lower barrier for identifying anonymous users.

While you might state that copyright infringement shouldn’t give anyone anonymity, where this gets a bit trickier is what kind of “infringement” we’re talking about. If it’s purely “consumptive” infringement (downloading songs or whatnot), I can certainly understand the idea that protecting anonymity probably doesn’t make much sense. If it’s not purely consumptive, but communicative, speech that is infringing, then there are trickier questions. But here’s the thing: the Dendrite rule appears to cover both adequately. If it’s just someone downloading (or uploading) some music tracks, run through the Dendrite rules and it seems pretty clear that any judge will say it’s reasonable to get rid of the anonymity.

But in a case (such as the lawsuit in question) in which ex-members of a religion are trying to expose things they don’t like about that religion, there are definitely reasons why a judge might want to think twice before simply allowing the unveiling of the speakers. But, in this case, a magistrate judge did not — simply relying on that precedent from the RIAA case to use a much, much lower standard in copyright cases to wipe out anonymity. As Levy shows, the “Sony” standard (from the RIAA case, which was technically, and only technically, from Sony Music), has the deck stacked almost entirely against anonymous speech. The Dendrite test requires multiple requirements to be met. The “Sony test” has a series of factors, almost all of which are inherently weighted against anonymous speech, and the test doesn’t “require” any specific factors be met, but rather let’s the judge “weigh” the different pieces, which are already tilted on the scale towards removing anonymity.

But that’s what happens when people don’t recognize the unintended consequences of rulings such as the original Sony ruling. It seems “easy” to make up such a test when dealing purely with consumptive infringement. But now that the same test is being used to unveil speakers who are speaking out against a religion, it should raise serious questions about the appropriateness of such a test. The Dendrite rules are proven and do allow for the protection of anonymous speech — but also can allow for anonymity to be removed, through a careful process, if requirements are met. It seems that the same test ought to apply in copyright cases as well.

Filed Under: anonymity, copyright, defamation, dendrite, first amendment, free speech