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

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.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Sep 6th, 2011 @ 3:31pm

    Anonymity is bad m'kay.

    reply to this | link to this | view in thread ]

  2. icon
    That Anonymous Coward (profile), Sep 6th, 2011 @ 4:17pm

    I find it interesting that they registered the copyright just so they could do this. Its obvious they had no case so instead stooped to the tactics being used in the mass copyright cases.

    Copyright seems to be the new magic tool to open doors that would ordinarily be blocked without serious review of the case. We can just slap a copyright charge onto the docket and them we can get information we would normally be blocked from having.

    Everyone likes to talk about just the "evil" that anonymous speech online creates, and they over look the important things those of us using the cover it provides to share things we fear would have serious repercussions if those things were linked to our real names.

    How much longer are we to put up with the law being twisted to support the side of the "Haves" at the expense of the "Have Nots"? The law is meant to be balanced, sometimes it is hard to find the balance... but when you stop trying and just accept what one side wants, you serious hurt the legal process in this country.

    Shall we just accept everything a copyright holder says as completely factual and ignore the glaring omissions and flaws in their case? Or should we expect that the legal system actually maintain the balance of the laws?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Sep 6th, 2011 @ 4:30pm

    What do you believe in?

    Copyright is the new Jesus here to save us from child porn, terrorists and ourselves... all you need is faith!

    reply to this | link to this | view in thread ]

  4. icon
    That Anonymous Coward (profile), Sep 6th, 2011 @ 5:32pm

    Re: What do you believe in?

    Oh crap, I guess finally making my decision and picking the FSM was a bad idea?

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Sep 6th, 2011 @ 7:10pm

    Anonymity is like any other value inside society it must be exercised or it ceases to exist.

    In times like these, when some people are trying really hard to strip others from their rights is that we see what society is made of.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Sep 6th, 2011 @ 8:48pm

    One part of the Sony test I've always found persuasive is the fact that without revealing the Doe defendant's identity to the plaintiff, the plaintiff would have no other way of ever finding out who did him wrong. Under Sony, if I make a prima facie showing that my rights were violated, and if I can show that revealing the Doe defendant's identity is necessary to getting relief, the defendant's First Amendment rights must give way. This sounds perfectly reasonable to me.

    If I understand him correctly, Levy thinks that Dendrite should always be the test, whether it's copyright or defamation. I have no problem with this opinion, but I question whether the Sony test itself wouldn't be constitutionally adequate for either one. Sure the Dendrite test offers the would-be defendant more protection, but would less protection under the Sony test be too little? I'm not so sure.

    I totally get the argument that the reasonableness of the anonymity depends upon the circumstances. That makes sense to me. But still, I think for most defamation or copyright cases, the Sony test doesn't violate the First Amendment. Has this ever been litigated?

    I'm all for saying the Dendrite test is better as a matter of policy. Who wouldn't want a higher bar to be set for revealing their anonymity? But I'm not sure that the Constitution requires one over the other. If that's the case, I think it's important to frame the argument as one of "should," and not as one of "must."

    reply to this | link to this | view in thread ]

  7. icon
    Atkray (profile), Sep 6th, 2011 @ 9:15pm

    Re: What do you believe in?

    Comparing copyright to the individual that millions of people believe to be the the savior of the world is tacky and insulting.

    It is much more important than that.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Sep 6th, 2011 @ 9:42pm

    I think Mike you are trying a little too hard to find another foxhole to hide copyright violation in. What you propose is to allow copyright violators to hide by cloaking themselves with an anonymous cloak, as if it suddenly makes law breaking unimportant.

    First and foremost, speech that breaks the law generally is not protected speech. So the anonymous cloak tends to drop pretty fast when their is an illegal act. You may not consider copyright violations to be a serious illegal act, but it does meet the standards of an illegal act, which makes the speech itself unprotected. So there is no real first amendment right in play here.

    The Sony test is much more logical when you are dealing with no a question of pure speech, but in an actual illegal action.

    Creating another hiding place for people who choose to break the law is possibly one of the stupider ideas you have brought forward.

    reply to this | link to this | view in thread ]

  9. icon
    Jay (profile), Sep 6th, 2011 @ 10:26pm


    "First and foremost, speech that breaks the law generally is not protected speech."

    Has a judge declared it so? No? Then it's protected.

    "So the anonymous cloak tends to drop pretty fast when their is an illegal act."

    Hmmm... Didn't know speaking your mind was illegal...

    "You may not consider copyright violations to be a serious illegal act, but it does meet the standards of an illegal act, which makes the speech itself unprotected."

    Here's the funny thing. A judge might not see it so, but you do. That's a difference in opinion. Tell you what, why not tell me your full name and address because by the power vested in me... you are given NO protected speech.


    Wait, it didn't work? Dang...

    "So there is no real first amendment right in play here."

    And here's how I know that you've yet to read a damn thing from the article. This article is about former cultists who had an opinion about their guru. It was an opinion that would not need to be copyrighted. But the manual, insignificant by itself, is used to find their identities.

    And you justify this by saying it's a hidey hole...

    If you want to rail against free speech advocates and those derned pirates, be my guest. But do yourself a favor and read why the 1st Amendment allows people to speak anonymously if their actions may result in retaliatory bullying.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Sep 6th, 2011 @ 10:26pm

    Courts have stated, time and time again, that the ability to speak anonymously is part of what's protected under the First Amendment.

    then they and you need to read the law again, not read what you want, it never says you have the right to speak anonymously, just that you have to the right to speak. if you wont stand up for what you say, keep your mouth shut

    here in case you cant find it

    Amendment 1
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    reply to this | link to this | view in thread ]

  11. identicon
    Dave, Sep 7th, 2011 @ 12:30am

    I think you've kinda missed the point there AC.

    Remember that part of the reason people support anonymity so fevently is because some people are in a situation where they can't stand up for what they say without the law being used against them in some way. Something the first amendment is specifically meant to defend people against.
    Thus, without anonymity, their first amendment rights are trampled before they even open their mouth.

    reply to this | link to this | view in thread ]

  12. icon
    Crosbie Fitch (profile), Sep 7th, 2011 @ 1:05am

    Anonymous is a priori not culpable

    All anonymous statements are equipotential, i.e. "X is a liar" and "X is not a liar". All an anonymous author does is present a statement for consideration on its intrinsic merits, i.e. without any weight lent to it by the author's reputation.

    Because an anonymous statement has no weight (or has equal weight to its equipotential adjuncts) neither the statement nor its author can be culpable for its consequences (the reader is solely responsible for their actions).

    Another way of looking at it is that anonymous statements have as much weight as a computer's statements. Either they have intrinsic merit or they are vacuous.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Sep 7th, 2011 @ 5:46am

    Re: Re:

    Jay, you are speaking very specifically and narrowly about the individual case. Illegal speech is not protected free speech. What Mike is talking about is protecting copyright violators by having them post anonymously, and thus be somehow exempt from the law because they are anonymous.

    It is a non-starter.

    For this particular case, if there is in fact a valid copyright violation, it needs to be addressed, regardless of it's implication on other parts of the speech. The illegal act should not be able to hide behind some "protected speech".

    It is the same logic Mike has been trying to push for the rap music sites seized by ICE. The logic fails there, and it fails here. You cannot excuse illegal activity just to protect some speech. Otherwise, murderers would only shoot people while standing on a soap box commenting on the government. After all, the speech would be protected, so everything that happens at the same time would be too, right?

    reply to this | link to this | view in thread ]

  14. icon
    ClarkeyBalboa (profile), Sep 7th, 2011 @ 7:06am

    Re: Re: Re:

    What i got from the article was that if the cult could show sufficient damages under Dendrite, then discovery would still be allowed. I find it disingenuous that the cult copyrighted the manual shortly before pursuing legal action. It seems like it was just legal maneuvering specifically to identify the people speaking out against them. If you don't think anonymity is important, especially when you are speaking out against religious groups, i challenge you to join a scientology chapter and then proceed to shed light on your experiences there.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Sep 7th, 2011 @ 10:04am

    Re: Re: Re: Re:

    You got the article right, I agree with you fully. The actions of the church appear to be less than transparent, put it that way.

    However, this specific instance of abusing copyright law doesn't even start to suggest that we have a great need for some sort of "anonymous copyright infringer" protection in the law, which is the conclusion Mike appears to be trying to draw. The repercussions of that sort of a change would be widespread, making such a change to stop a minor and narrow abuse of the copyright law on par with burning down a house to kill fleas.

    What Mike appears to be trying to do is to build up a case towards having anonymous posting of copyright material not be actionable. That would be essentially a 180 degree turn for copyright law, and would legalize pretty much everything happening on the pirate sites online today. I understand his logic, but his logic is wrong and incredibly dangerous. It's almost trying to sneak in through the back door what clearly will never come in the front.

    reply to this | link to this | view in thread ]

  16. icon
    herodotus (profile), Sep 8th, 2011 @ 5:41pm

    Re: Re: Re: Re: Re:

    What the article urges, to my mind, is that any judicially formalistic approach to anonymity issues demand a probing factual analysis of the context in which the identifying information is sought.

    The recent RIAA/ISP 'agreement' seems to stipulate that technical procedures at revealing anonymity in the context of copyright infringement, even if it is a violation of either first or first amendment rights for the accused, is justifiable to protect the established state interest in maintaining an incentive for the production of artistic material.

    This is because the methodology utilized prior to the information request comes within a reasonable modicum of statistical certitude that such a violation has taken place. The utilization of traffic analytics on P2P servers is certainly sufficient justification for the issuance of a warrant.

    Such an inquiry is clearly impossible in the context of the defamation suits without the ISP investigating the content of a users browsing history, e.g., what pages she has visited. This is certainly not a narrowly tailored means for the forcible disclosure of anonymity, unless the interest is just fucking amazingly compelling--SUPER SPECIALS or something like that (or terrorism evidentially).

    reply to this | link to this | view in thread ]

  17. icon
    herodotus (profile), Sep 8th, 2011 @ 6:00pm


    Take the case of anonymity clients-- perhaps, but illustrative of the basic point that the internet was consciously designed to enable the technical distancing of communication from attributes that would otherwise qualify identity.

    Its worth protecting some anonymity, and people who really really need that can get it. For the average person, internet anonymity is a bald faced lie though--every site we visit embeds 100's of cookies, etc...

    reply to this | link to this | view in thread ]

  18. icon
    herodotus (profile), Sep 8th, 2011 @ 6:04pm

    Re: Re: What do you believe in?

    I agree with the above. This is why forums are bad spots for anonymity. The ones with links to real IDS are better IMHO

    reply to this | link to this | view in thread ]

  19. identicon, Mar 2nd, 2012 @ 6:16am

    reply to this | link to this | view in thread ]

  20. identicon
    DAVID, Jun 17th, 2012 @ 4:29am,;;david_yu@,,;

    reply to this | link to this | view in thread ]

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