from the disagree dept
Marc Randazza, Liberty Media's lawyer on these cases, and I disagree over whether lumping together a bunch of unrelated individuals is proper "joinder." Randazza has argued that many other mass infringement lawyers do this wrong, but his decision to focus on those in a single swarm makes it a more effective argument. In this case, the court certainly bought Marc's argument, and became one of a small number of courts not to throw out most of the Does sued. Though I find it a little disingenuous in that the judge notes a few other cases that have allowed the joinder to stand... but leaves out the many, many cases where all but one of the Does was dismissed from the suit.
One of my issues with this kind of joinder is that the defendants are all unique and may have very different arguments and defenses. It seems inappropriate to lump them all together. The court rejects that, saying that defendants can raise their separate defense later in the case, but that the basic questions of law are identical across the cases.
The bigger issue to me is a different point raised by the defendants in this and many other cases involving gay pornography. For better or worse, one of the fears of many (including myself) is that such cases work even better as a "shakedown" game, because defendants who either are in the closet or are not gay and fear being sued for downloading gay porn are more likely to just pay up to avoid the embarrassment. I raised this issue with Randazza directly, who argues that my argument is actually homophobic, suggesting that there is something wrong with being gay. To be clear: I don't think there's anything at all wrong with being gay, and, in fact, think that those who are gay should be proud and comfortable with that fact. But, I also think one's sexual orientation and preferences are a personal and private matter -- and that bringing them out through a legal process, as part of an effort to put pressure on someone to pay up, is highly questionable (and morally dubious). If someone has made the decision not to "out" themselves, that's their decision.
Unfortunately, the court doesn't buy this argument, and says that the names of defendants should be made public, rather than allowing them to remain anonymous. In fact, the court suggests there's no evidence that Liberty Media intends to use this info to pressure people into paying up:
Unnumbered Doe suggests that Liberty Media sought the public identities of Does 1-38 to coerce pretrial settlements. Unnumbered Doe’s Mot. 7 (“While we cannot know for certain how the Plaintiff intends to proceed . . . the likely course of action is to contact each of the individuals and demand a monetary payment for settlement of the claims in question.”). This allegation is not supported in the motion papers or by Liberty Media’s actions to date. It is purely speculative and not grounds for allowing the moving defendants to proceed anonymously.I find this part to be the most questionable, seeing as Liberty Media, in the past, has actually been quite active in trying to get people to "settle" to avoid lawsuits -- including its infamous pay us before we even accuse you plan.
Still, the most troubling idea is that the court seems to think that outing someone who does not want to be outed is "mere embarrassment."
Unnumbered Doe further argues that the anonymity of Does 1-38 should be protected because the disclosure of their identities in conjunction with this lawsuit, which involves homosexual pornography, may cause reputational harm and intrusion upon their privacy. Id. Unnumbered Doe asserts that being named as a party to this action amounts to “a public accusation” that the defendants downloaded and viewed homosexual pornography. Id. Doe 15 similarly argues that their public identification in the lawsuit will expose the defendants to “intrusive public scorn.” Doe 15’s Mot. 3.Now, personally, I don't think such a revelation should even be considered "embarrassing," at all. But, I'm not in a position to talk. And, from what we've seen of folks -- especially younger people -- who have had such info exposed against their will to family and friends who might not be accepting, the idea that this is a "mere embarrassment" doesn't seem accurate at all. Such revelations have resulted in suicides. That's not mere embarrassment. Even if we all agree that no one should be embarrassed about their sexual orientation, or even their interest in pornography, to make that decision on those individuals' behalf just seems questionable to me, and fraught with potential trouble.
The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously. As the Superior Court of Massachusetts stated, “mere embarrassment [is] not sufficient to override the strong public interest in disclosure.” Roe, 2011 WL 2342737, at *1. Thus, the potential embarrassment or social stigma that Does 1-38 may face once their identities are released in connection with this lawsuit is not grounds for allowing them to proceed anonymously.