The Volokh Conspiracy
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That's the issue in today's U.S. Court of Appeals for the 6th Circuit decision in Signature Management Team, LLC v. Doe. The question of whether such a "John Doe" defendant should be unmasked usually arises before judgment, while the case is pending; here, it arose after defendant was found liable for copyright infringement. The district court concluded the defendant needn't be unmasked; the court of appeals majority sent the case back for further decision-making, but with the suggestion that unmasking should be the norm in such situations; the dissent would have categorically called for unmasking in such cases.
1. The facts and the trial court decision:
Team is a multi-level marketing company that sells materials designed to help individuals profit in multi-level marketing businesses. John Doe anonymously runs a blog titled "Amthrax," in which he criticizes multi-level marketing companies. Doe focuses much of his criticism on Team. On January 18, 2013, Doe posted a hyperlink on his blog to a downloadable copy of the entirety of the fourth edition of a book copyrighted by Team, "The Team Builder's Textbook" ("the Work"). At the time of the infringement, the Work was in its ninth edition. After Team served Automattic, Inc. (the blog's host) with a take-down notice under the Digital Millennium Copyright Act, 17 U.S.C. § 512, Doe quickly removed the hyperlink to the Work.
On September 19, 2013, Team filed this action alleging one count of copyright infringement against Doe arising from his publication of the Work on his blog. Team sought only injunctive relief, including a request that the district court identify Doe. Team also requested an order instructing Doe to destroy all copies of the Work in his possession, and a permanent injunction ordering Doe to cease all infringing use of the Work. In response, Doe asserted fair-use and copyright-misuse defenses. Doe also asserted that he has a First Amendment right to speak anonymously, and that his identity should therefore not be disclosed to Team.
During discovery, the trial court compelled "Doe to reveal his identity to the court and to Team's attorneys, subject to a protective order preventing Team from learning Doe's identity." The court granted summary judgment to Team, rejecting Doe's fair-use and copyright-misuse defenses. But after judgment,
The court found that unmasking Doe "was unnecessary to ensure that defendant would not engage in future infringement of the Work" and that "defendant has already declared to the Court that he has complied with the proposed injunctive relief" by destroying the copies of the Work in his possession such that "no further injunctive relief is necessary."
2. The panel majority opinion, by Judge White joined by Judge Stranch, concluded that "where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant," but nonetheless concluded that there is a broader systemic value from open judicial proceedings, including by revealing the name of a defendant who had been found liable:
[L]ike the general presumption of open judicial records, there is also a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff. When deciding whether to unmask an anonymous defendant, courts must consider both the public interest in open records and the plaintiff's need to learn the anonymous defendant's identity in order to enforce its remedy. The greater a plaintiff's or the public's interest in unmasking a losing Doe defendant's identity, the more difficult it will be for the Doe defendant to overcome the presumption and remain anonymous. Further, where 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.
The open records doctrine is premised on allowing the public to inspect judicial records to increase public confidence in and understanding of the judicial system, and diminish the possibility of injustice, incompetence, perjury, and fraud. … The presumption in favor of openness is stronger when there is a greater public interest in the subject matter of the litigation. Determining the public interest in the disclosure of the identity of a Doe defendant is a fact-intensive inquiry. For example, in a libel case, a district court should consider factors such as the content and subject matter of the speech, the frequency of the speech, the size of the audience for the speech, and the intent of the speaker. Intentional libelous speech that was read by a large number of persons, and which implicates a topic of public concern or a well-known figure, would carry a strong presumption in favor of unmasking. In contrast, the public interest would be weak where the libelous speech was negligent, read by few people, and arose from a personal feud. In a copyright case, the court should consider the reach of the copyrighted material, the economic losses suffered by the copyright holder, the reach of the infringed version of the copyrighted material, and the intent of the infringer. For example, the public interest would be stronger when the infringed material is a bestselling novel rather than a sparsely read instruction manual.
In addition to the public interest in the litigation, the presumption in favor of disclosure is stronger or weaker depending on the plaintiff's need to unmask the defendant in order to enforce its rights. For example, a plaintiff who obtains an ongoing remedy such as a permanent injunction will have a strong interest in unmasking an anonymous defendant. Conversely, a plaintiff will have little need to unmask a Doe defendant who has willingly participated in the litigation and complied with all relief ordered. Further, where the public interest is minimal and the Doe defendant's interest in remaining anonymous is substantial, a district court could reasonably enter a judgment that conditions a defendant's continued anonymity on the satisfaction of the judgment within a certain timeframe. Such an approach would balance the plaintiff's need to enforce the judgment against allowing a defendant to act promptly to protect his interest in remaining anonymous.
Finally, a Doe defendant may rebut the presumption of openness by showing that he engages in substantial protected speech that unmasking will chill. The court must engage in a fact-specific analysis that balances the extent to which unmasking would infringe on the exercise of Doe's First Amendment rights, against the strength of the presumption in favor of unmasking and the plaintiff's interest in unmasking Doe. …
In denying Team's request to unmask Doe, the district court reapplied the … balancing test [from Art of Living, a pretrial unmasking case] that it had previously used in its order declining to compel discovery of Doe's identity. The district court properly considered factors such as the non-necessity of a permanent injunction, Doe's compliance with all relief ordered, and that the majority of Doe's anonymous blogging constitutes protected speech. However, the district court failed to recognize that "very different considerations apply" at the judgment stage than at the discovery stage, and that there is a "strong presumption in favor of openness as to court records." … On remand, the district court should weigh the factors favoring anonymity against the public's interest in open proceedings in general and in this particular copyright-infringement lawsuit, as well as plaintiff's interest in unmasking Doe. …
We do not agree [with the dissent] 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.
3. And a dissent, by Judge Suhrheinrich:
Copyright infringement is not protected speech—just like obscenity or fighting words. If Doe's speech is not protected, then no balancing is required. To the extent that unmasking him here will harm his ability to exercise his right to anonymous speech in the future, that is collateral to the issue before us and therefore not properly considered in this proceeding. I see no need for further analysis and would remand with instructions that the district court reveal Doe's identity.
The judgment in this case embodies the district court's holding that Doe, by his actions in posting a full copy of Team's copyrighted Work on the Internet for anyone to download for free, infringed Team's copyright in violation of the Copyright Act. The flip side of that finding is that Doe was not engaging in First Amendment protected speech. As the Second Circuit has observed: "The First Amendment does not … provide a license for copyright infringement. … Thus, to the extent that anonymity is used to mask copyright infringement or to facilitate such infringement by other persons, it is unprotected by the First Amendment." … The fact that Doe used his anonymous blog to commit the infringement does not alter the conclusion, expressed in the judgment, that Doe committed copyright infringement, and by implication, was not engaging in free speech when he posted that hyperlink.
Doe's identity was entitled to limited protection at the discovery stage because, at that point, it was not clear whether he had committed any wrong, and disclosure of his identity would cause irreparable harm in the event it was determined that he was innocent of copyright infringement and properly engaging in protected anonymous speech. For this reason, the Art of Living balancing test was properly applied during the discovery phase. But it is a temporal and temporary measure, created to facilitate discovery and to protect innocent defendants. It should not be extended to shield an adjudicated copyright infringer from the ramifications of the judgment against him. Having rejected Doe's fair use and copyright misuse defenses, having determined that Doe was liable for copyright infringement, and having ordered injunctive relief, there was no legal basis for entering a judgment that did not identify Doe….
The majority acknowledges that "the entry of judgment against a Doe defendant largely eliminates" the need to protect a potentially nonliable defendant during the discovery phase, but then inexplicably concludes … that "where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant." … [But I] do not understand how an injured plaintiff has "no practical need" to know who caused that injury. A judgment in an in personam action is meant to bind the parties to the court's order. Ordering injunctive relief against Doe without identifying him minimizes the effect of the court's order, downplays the significance to Doe, encourages future misconduct, and hinders Team's ability to monitor compliance. … Leaving [Doe] masked gives him a blueprint to do this all over again.
The district court's solution as to the fourth factor—monitoring compliance—is problematic. The district court knows Doe's real name, but monitoring blog sites on the internet is not a proper task for the judiciary. Team's attorneys know his name too, but this requires Team to pay its attorneys to monitor Doe indefinitely. Such an approach also interferes with the attorney-client privilege. The majority posits that future monitoring is unnecessary, because Doe has already complied with all aspects of the court's order. But if I were Team, I would want to keep an eye on Doe's future behavior. As it currently stands, Team lacks that ability, and neither the district court nor Team's attorneys have any legal responsibility to do so either.
The majority's concern here is like that of an overprotective parent. Doe should not be shielded from the consequences of his own actions, since he could have preserved his right to speak freely and anonymously by simply refraining from copyright infringement.
UPDATE: I originally erroneously said that the district court issued an injunction against the defendant. To be precise, the district court had (1) issued a judgment finding the defendant to have infringement, (2) said in May 2016 it was "inclined to enter an order requiring [defendant] to destroy all copies" of plaintiff's work in defendant's position, and then (3) in July 2016 concluded that defendant had destroyed all the copies, and thus "has demonstrated compliance with the proposed injunctive order," so that defendant's request for the order was now moot. My apologies for the error.
UPDATE: For more on the case, see this detailed and thoughtful post by Paul Alan Levy (Public Citizen).