Appeals Court Can't Decide Whether It Should Protect Critic's Anonymity, Boots Free Speech Case Back To Lower Court

from the results-are-inconclusive dept

A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It's a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics.

Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT's books on his "Amthrax" blog. SMT filed a DMCA takedown notice with the blog's hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book.

This quick concession didn't stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked.

SMT moved to compel disclosure of Doe's identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity.

Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe's information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed.

The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]:

With the explosion of anonymous Internet speech, courts have begun to develop balancing tests weighing the First Amendment right to anonymous speech against a plaintiff’s interest in unmasking an anonymous defendant. See id. at 1175–76 (compiling balancing tests). All of these cases, however, have dealt with anonymity rights during the discovery process. No case has considered the issue presented here—whether and under what circumstances a court can properly protect a party’s anonymity after judgment. This is an important distinction. The prejudgment cases often deal with a plaintiff’s need to unmask a defendant in order to effect service of process.

[...]

In contrast, the entry of judgment against a Doe defendant largely eliminates these concerns because the plaintiff will have established liability. On the other hand, where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant.

Setting itself up with opposed theories, the court spends the next several questions thinking out loud. Public litigation carries a presumption of open judicial records, which includes identifying information pertaining to both sides of lawsuit. In this case, however, not only is one side still anonymous, but even the plaintiff is unaware of the true identity of the person it's suing. This stands in contrast to sealed cases where both parties are known to each other, but withheld from the general public. The fact that Doe lost a copyright infringement case weighs heavily against his continued anonymity.

[W]here a Doe defendant’s speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.

This chilling effect could be argued using nothing more than Doe's anti-MLM blog. Certainly, there's plenty of evidence (both judicial and anecdotal) companies -- especially questionable ones -- like to silence critics. One good way of silencing persistent critics is eliminating their anonymity, making them more likely to be sued or otherwise harassed by the entities they criticize.

But the Appeals Court gets hung up on the copyright infringement, even though there's little on the record here showing Doe was a repeat offender. He could have been more careful in his use of the copyrighted MLM manual, but his quick compliance with SMT's demands and district court's order shows he had no intention of thumbing his nose at copyright law.

Doe's compliance seems to weigh against an order for unmasking on remand, even though Doe is definitely the loser in this legal battle. The Appeals Court tries to weave both of these disparate views into a single, mostly-cohesive text, but fails.

We do not agree either that the district court lacks discretion to allow Doe to remain anonymous or that Doe’s legitimate First Amendment right to speak anonymously is collateral to these proceedings. Although Doe’s infringing speech is not entitled to First Amendment protection, that speech occurred in the context of anonymous blogging activities that are entitled to such protection. An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.

Further, we do not agree that allowing Doe to remain anonymous would necessarily diminish the impact of the ordered injunctive relief. The dissent’s suggestion that a failure to unmask Doe would obligate the district court and Team’s attorneys to monitor Doe’s activity is inapposite because the district court declined to enter any ongoing injunctive relief. Since Doe has already complied with all aspects of the court’s order, there will be no need for monitoring regardless whether the district court ultimately decides to unmask Doe. Finally, to the extent that the concerns identified by the dissent cut in favor of unmasking Doe, the district court should consider those factors on remand.

The Appeals Court sounds like it might be inclined to let Doe keep his anonymity, but pulls back from that bright line and boots it back to the lower court. The good news, as far as Doe is concerned, is that the lower court already ruled in favor of his arguments against unmasking. Nothing in this ruling suggests the lower court should feel compelled to overturn its earlier decision.

SMT's insistence the infringer/critic be unmasked smacks of pure vindictiveness. Doe has complied with all requests and orders, leaving very little for SMT to truly complain about, especially as the lower court did not issue an order requiring monitoring of Doe's blogging for possible further violations. If SMT is given a win, it will do more than chill Doe's speech. It will chill the speech of anyone criticizing SMT and its business practices. It certainly wouldn't be a good precedent to set: allowing more powerful entities to unmask weaker ones if they can secure some form of judgment in a court. Hopefully, the lower court will come to the same conclusion the second time around.


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  • icon
    REM(RND) (profile), 7 Dec 2017 @ 4:19am

    Streisand at its finest!

    Great, now I want to find this guy just to read his blog against MLMs and SMT. Looks like the lawsuit is really doing its job to stifle awareness of themselves.

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

  • identicon
    Anonymous Coward, 7 Dec 2017 @ 6:08am

    background articles

    https://www.eff.org/press/releases/first-amendment-protections-dont-end-anonymous-speakers-who-lose- lawsuits-eff-tells

    First Amendment Protections Don’t End For Anonymous Speakers Who Lose Lawsuits, EFF Tells Court
    Press Release January 17, 2017

    Plaintiffs Don’t Automatically Get to Unmask Anonymous Blogger

    ---------------------------------
    https://www.lexology.com/library/detail.aspx?g=d9b52643-5e15 -4b66-a420-a1e8090a094b

    Can You Copyright Infringe Anonymously?
    Blog Government Contracts Legal Forum

    --------------------------------

    https://www.lexology.com/library/detail.aspx?g=c01e6842-9d73-4abe-ab 4a-ae64b8b53e68

    First Amendment balancing act
    Blog Jack "Out of the Box"

    -----------------------------------
    The Team Builder's Textbook - Building Communication in the Information Age

    Amazon
    ----------------------------------

    More information by searching:

    "signature management team" pyramid scheme

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

  • identicon
    Anonymous Coward, 7 Dec 2017 @ 6:19am

    Shoe was on the other foot

    http://www.mlm-thewholetruth.com/network-marketing-news/quixtar-and-team-litagation-brings-important -ruling/


    Quixtar and Team Litigation brings important ruling

    by louabbott on July 13, 2010


    Related litigation in the ongoing Quixtar vs. Signature Management TEAM disputes brings important First Amendment ruling

    Directly at issue in this ruling is whether anonymous speech can be protected under the 1st amendment when it hurts the business of private enterprises.

    ...
    In these suits, Quixtar claimed that a smear campaign was carried on by Signature and it sought to find out who was behind it. These anonymous complaints on the Internet included allegations that Quixtar secretly acknowledges its products are overpriced, they don’t meet FTC rules and the company suffers from systemic dishonesty.

    In depositions in these non-competition suits, Quixtar sought to force TEAM employee Benjamin Dickie to reveal the identity of five anonymous online commenters who allegedly made the defamatory comments about Quixtar. Dickie refused.

    Judge Reed ordered Dickie to reveal the names of three of the speakers but said the other two could be kept confidential. An appeal was filed and the circuit court upheld Reed.

    McKeown said there have been a number of these cases and she wrote, “Anonymous online speech is an increasingly important issue in the commercial context, particularly in light of the ubiquity of the Internet.”

    Relying on prior court decisions, the court said the party suing to get the names of the anonymous online speakers must submit sufficient evidence that it has been harmed by the comments.
    ...

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

  • icon
    bhull242 (profile), 7 Dec 2017 @ 8:19am

    Why?

    I just don't get what SMT is trying to accomplish here—at least in a way that is consistent with the law. There's no reason to unmask Doe at the point: they've been fully compliant with the CoD and the demands so far (beyond unmasking themself), they are not a repeat/multiple offender (it seems to have only been a single instance of infringement on a single material), and clearly there have been no issues regarding service or discovery (beyond Doe's identity).

    I've never heard of a case where someone sent a CoD letter to someone over copyright infringement, had the other party comply fully and promptly, only to then sue them anyway for copyright infringement. Also, as noted in the (non-)decision here, it's unheard of for someone to try to force the unmasking of someone outside of the pre-discovery phase, and it's almost always solely for the purposes of service, anyway, which clearly hasn't been an issue here.

    Again, what is SMT hoping to accomplish here that can't be done without unmasking them and doesn't violate Doe's protected rights that can't wait until a final verdict?

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

    • identicon
      Anonymous Coward, 7 Dec 2017 @ 9:18am

      Re: Why?

      "I've never heard of a case where someone sent a CoD letter to someone over copyright infringement, had the other party comply fully and promptly, only to then sue them anyway for copyright infringement."

      This has been happening on a regulalr basis, going all the way back three decades to the (pre-Internet) Usenet/Compuserve era, when a few ex-Scientology members posted the cult's secret texts such as the Xenu story. (Unlike any other "church" on the planet, everything in Scientology is copyrighted) The result of those scorched earth legal battles had an influence on the DMCA.

      This past year, YouTube video makers H3H3 were sued by another YouTube personality they had mocked in a video containing a mix of "fair use" content and original commentary. H3H3 won the court case, but with legal costs of over a hundred thousand dollars.

      Also, virtually all file-hosting and Bittorrent sites (The Pirate Bay being the notable exception) take down user-contributed content on demand from the copyright owner, but the fact that these download sites are fully DMCA compliant has done little to keep them out of legal trouble.

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

    • icon
      That One Guy (profile), 7 Dec 2017 @ 11:34am

      Re: Why?

      The final paragraph starts with a sentence that's likely to be their motivation at this stage.

      'SMT's insistence the infringer/critic be unmasked smacks of pure vindictiveness.'

      They won the infringement side of the case. They sent a DMCA notice in, the material was promptly taken down. Were the issue really infringement then it would be done by now given that win, that they are continuing to try and unmask the blogger is likely intended to 'punish' them for doing something SMT didn't like, and act as a lesson to anyone else who might be critical of the company by showing that they will go above and beyond in going after those they don't like.

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

    • icon
      Stephen T. Stone (profile), 7 Dec 2017 @ 3:14pm

      Re: Why?

      I just don't get what SMT is trying to accomplish here

      They want to unmask Doe so they can smear, harass, and otherwise destroy Doe’s life through years of legal action.

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

  • icon
    DB (profile), 7 Dec 2017 @ 8:57am

    Extra-judicial punishment?

    I can't come up with any other reason to expose the identity of the defendant except directly or indirectly enabling additional punishment.

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

  • identicon
    Anonymous Coward, 7 Dec 2017 @ 9:40am

    But the Appeals Court gets hung up on the copyright infringement, even though there's little on the record here showing Doe was a repeat offender.

    When was copyright updated to apply to links as well as copying? How can this person be said to have offended at all?

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

  • icon
    MyNameHere (profile), 7 Dec 2017 @ 5:15pm

    I find it interesting because, on a purely technical level, the question of the Doe being unmasked should have been rendered before the judgement was made. The lower court clearly used a bit of bootstrapping to say "well, since the plaintiff got what they want, we won't bother". Yet, that doesn't satisfy all that the plaintiff was seeking.

    Yes, the unmasking is vindictive on many levels. It is also the leverage. The Doe would likely not have complied if he felt his identity would have been hidden even after a losing judgement. That he capitulated with the DMCA notice to avoid exposing himself is in itself a problem.

    If the guy (or girl) is so desperate to hide their identity, you have to wonder why. If complying under duress with the DMCA notice is preferable to exposure, then their identify is significant. Could it be that there would be the basis for a much larger lawsuit if that identity was exposed? Is the Doe perhaps a former employee, a regulator, a public figure, or a litigator?

    The reason for the Doe to remain anonymous must be balanced against what exposure would bring. If the plaintiff is denied their "full bite of the apple", then justice is not served.

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

    • identicon
      Anonymous Coward, 7 Dec 2017 @ 10:19pm

      Re:

      If the guy (or girl) is so desperate to hide their identity, you have to wonder why.

      Like antidirt, out_of_the_blue, Paint Chip Eater, Hamilton the Shiva/Melania fanfiction writer, and yourself?

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

    • icon
      The Wanderer (profile), 10 Dec 2017 @ 6:50am

      Re:

      If the guy (or girl) is so desperate to hide their identity, you have to wonder why. If complying under duress with the DMCA notice is preferable to exposure, then their identify is significant.

      The reason seems clear to me: because lack of anonymity would expose the writer to what a commenter above called "extrajudicial punishment", not just by this one MLM company, but by any of the (I presume numerous) others which the blog targets - now or in the future. That holds true even if nothing else the blogger has done is in any way legally questionable.

      Also, where do you get "under duress" from? I don't recall seeing any indication that he exhibited any objection or resistance to taking down the objectionable link; it's entirely possible that he didn't realize (either as an honest mistake, or as an oops-I-didn't-make-that-connection oversight) that putting it up could be infringing, and that he had no problem with voluntarily taking it down as soon as he knew.

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


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