Piracy ‘Whistleblower’ to Remain Anonymous, Court Rules

[NelsonG]

In 2010, Universal Music Group (UMG) sued Grooveshark owners Escape Media in the Supreme Court of the State of New York, claiming that the company infringed their copyrights by storing and subsequently distributing tracks to which UMG holds the copyrights.

In 2011, news site Digital Music News (DMN) published an article which contained claims from a member of a rock band that Grooveshark had illegally hosted the band’s music and refused to take it down when notified. The article attracted around 100 comments from DMN readers, one of whom claimed to be an employee of Escape Media.

The commenter, who posted under the name “Visitor”, claimed that he had regularly received “direct orders from the top” at Escape to upload music to Grooveshark’s servers. Worse still, “Visitor” claimed that the company would not fully remove infringing content, even if artists or music labels complained.

These allegations were viewed as problematic by Escape since in order for a service provider to gain immunity under the Digital Millennium Copyright Act (DMCA), it must remove copyrighted material once it becomes aware that an infringement has taken place.

So, in an effort to unmask this supposed employee of theirs, in January 2012 Escape served a subpoena on Digital Music News in order to obtain “Visitor’s” identity. After DMN refused to comply, in March 2012 Escape petitioned the Los Angeles Superior Court for enforcement. DMN was subsequently ordered to comply but promptly filed an appeal.

DMN argued that unmasking “Visitor” would not lead to the discovery of evidence admissible in UMG’s New York lawsuit against Escape (identifying information about “Visitor” had all been deleted) and that enforcement of the subpoena would infringe on the First Amendment rights of both DMN and “Visitor”.

Ultimately the court decided that since Escape had presented a prima facie case that “Visitor’s” comments were libelous, no First Amendment protection was available. DMN was ordered to comply with the subpoena and provide a copy of its server to Escape. DMN copied the servers but lodged an appeal in attempt to avoid handing them over.

This week the Court of Appeal of the State of California handed down its decision and it’s bad news for Escape.

Escape had argued that proving “Visitor’s” comments to be false would help them show that the company did not supervise direct infringement of UMG’s copyrights. The Court rejected Escape’s basis for needing access to “Visitor’s” identity stating that this “out-of-court quarrel is of no consequence to the determination of UMG’s lawsuit.”

Escape enjoyed no success on the privacy front either.

“Even if Visitor’s identifying information was reasonably calculated to lead to
admissible evidence, his or her right to privacy under the California Constitution would outweigh Escape’s need for the information,” the Court said.

“That interest begins with Visitor’s need for a venue from which to be heard without fear of interference or suppression. Visitor’s anonymity also frees him or her from fear of retaliation, an even more compelling interest if Visitor truly is an Escape employee, as represented, because exposure could endanger not only his or her privacy but also livelihood.”

The Court concluded with a summary of its opinion as to the value of “Visitor’s” comments.

“Visitor has done nothing more than provide commentary about an ongoing public dispute in a forum that could hardly be more obscure — the busy online comments section of a digital trade newspaper,” the Court wrote.

“Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indicium of reliability and little weight. We will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.”

With that the Court of Appeal ordered the trial court to vacate its order enforcing the subpoena and thereby protecting “Visitor’s” privacy.

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