Following a recent decision from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization have cause for concern. They may be unable to preserve their anonymity.
In Signature Management Team, LLC v. John Doe, the majority of a panel of the U.S. Court of Appeals for the Sixth Circuit established a new “presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff” in a copyright infringement case. This unmasking presumption is intended to protect the openness of judicial proceedings. Whether to unmask the defendant in such circumstances requires an examination of factors such as the plaintiff’s and public’s interest in knowing the defendant’s identity.
The litigation leading to this decision began when Signature Management Team LLC, the plaintiff, filed an action for copyright infringement against John Doe, the defendant. Signature alleged that the defendant posted a hyperlink on his blog to a downloadable copy of a book copyrighted by the plaintiff. The plaintiff sought injunctive relief, including that the district court order the defendant to destroy all copies of the book in his possession, a permanent injunction that the defendant cease all infringing use of the book, and that the defendant be publicly unmasked.
In response, the defendant asserted fair-use and copyright-misuse defenses. The defendant also asserted a First Amendment right to speak anonymously and argued that his identity should not be disclosed.
During the discovery phase, the plaintiff moved to compel disclosure of the defendant’s identity. The district court applied the test articulated in Art of Living Found. v. Does and declined to unmask the defendant, finding that a possibility existed that he might win on the fair-use argument and thus may not be liable for copyright infringement. The defendant, however, was ordered to reveal his identity to the court and the plaintiff’s attorneys pursuant to a protective order.
After the plaintiff prevailed on summary judgment on its copyright infringement claim, the district court again declined to unmask the defendant. The court concluded that unmasking was unnecessary to ensure that no further infringement would occur and that the defendant had already complied with the requested injunctive relief, making further relief unnecessary.
The only issue on appeal was the district court’s post-judgment refusal to unmask the defendant. Justices White and Stranch of the Sixth Circuit observed that the decision to remain anonymous—including on the Internet—was “an aspect” of free speech protected by the First Amendment. While courts have developed “balancing tests” weighing the First Amendment’s protection of anonymous speech against a plaintiff’s interest in unmasking, these cases have generally dealt with anonymity rights during the discovery process. The majority found no case had dealt with the situation at hand, i.e., where judgment had been entered against the anonymous defendant.
The majority held that, in a post-judgment context, maintaining the anonymity of the defendant raised different concerns than in the discovery phase of the case. Where a judgment had been entered against an anonymous defendant, there was no longer any concern about unmasking an innocent defendant. The majority acknowledged that copyright infringement was not entitled to First Amendment protection, but expressed some reservations that First Amendment rights may still be implicated. In any event, the majority noted that any anonymous speech rights that the defendant may have conflicted with the “important post-judgment” presumption of openness in judicial proceedings. At the same time, the majority recognized that where a defendant has complied with the relief ordered, there was no “practical need” to unmask the defendant.
Based on all of these considerations, the majority did not agree that the district court automatically lacked jurisdiction to allow the defendant to remain anonymous when engaged in speech not covered by the First Amendment, finding that the speech here occurred “in the context” of anonymous blogging that is entitled to free speech protection. Instead, the majority found that there is “a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff.”
The majority noted that, in deciding whether to unmask a losing defendant, a district court should consider the public interest in open records and the plaintiff’s need to learn the anonymous defendant’s identity to enforce its remedy. The greater these interests, the harder it will be for an anonymous defendant to overcome the unmasking presumption. A defendant can, however, rebut the presumption of openness by showing that he or she engaged in substantial protected speech (other than the infringing conduct, which is not protected) that would be chilled by unmasking.
The dissent would have taken a harder line. Justice Suhrheinrich noted that copyright infringement is not protected speech so no balancing should be required. The use of an anonymous blog does not change the fact that the defendant committed copyright infringement and was thus not engaged in protected speech. The dissent further disagreed that there was “no practical need” to unmask the defendant. Refusing to unmask the defendant minimized the effect of the court’s order, downplayed the significance of the defendant’s misconduct, encouraged future infringement, and hindered the plaintiff’s ability to monitor compliance.
In summary, anonymous bloggers and other Internet users should be aware that while they may avoid public unmasking in the discovery phase, they may be unable to protect their anonymity if ultimately found liable for copyright infringement. If other courts follow the Sixth Circuit’s lead on this subject, there may now be a presumption in the post-judgment stage in favor of unmasking anonymous defendants on the losing side of a case.