The Volokh Conspiracy
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No Pseudonymity for Porn Copyright Infringement Defendants, Says One Judge
The cases on the subject are sharply split, reflecting how ill-defined the law of pseudonymous litigation is.
From Magistrate Judge Elizabeth Pascal's decision last month in Strike 3 Holdings, LLC v. Doe (D.N.J.), one of the hundreds of cases filed over defendant consumers' allegedly sharing pornographic films via BitTorrent. The court allows plaintiff to subpoena records from the Internet service provider associated with the IP addresses used in the downloads; that's pretty normal.
But then the court turns to a question that also arises in nearly all these cases: Should it allow defendants to litigate pseudonymous (once plaintiff figures out their identities), at least provisionally? Many courts have said yes, in order to prevent reputational harm that may stem from being accused of downloading porn—even though risk of reputational harm generally isn't a basis of pseudonymity (and is a present for defendants in a vast range of cases, such as lawsuits alleging malpractice, fraud, and more). But Judge Pascal disagreed, as many other courts have done:
First, Federal Rule of Civil Procedure 10(a) states that "[t]he title of the complaint must name all the parties[,]" and the Third Circuit has recognized that a party may proceed anonymously only "in exceptional cases." The risk that a party "may suffer embarrassment or economic harm is not enough." Instead, a party "must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." At this early stage of the litigation, Plaintiff has not obtained Defendant's identity, and it is purely speculative whether Defendant would have a reasonable fear of any severe harm from being named.
Although it is conceivable that Defendant could suffer reputational harm due to the explicit nature of Defendant's copyrighted works, "[i]t is the rare civil lawsuit in which a defendant is not accused of behavior of which others may disapprove." Strike 3 Holdings, LLC v. Doe (E.D. Pa. 2022); see also Strike 3 Holdings, LLC v. Doe (D.N.J. 2022) ("[I]t certainly cannot be the case that anonymity is warranted for every defendant sued by Plaintiff simply because Plaintiff's copyrighted works are adult films, legal in all respects other than how the defendants in these cases obtained and/or shared them via the BitTorrent protocol.")….
This is a reminder of how vague and subjective the rules about pseudonymous litigation can be: I can't see much material difference between the porn infringement cases where pseudonymity has been granted and those where it has been denied, other than what judge is considering the matter.
