Why the Judge’s Decision Was Right (but Feels Wrong)

In my last two posts, I described the general contours of the First Amendment right to speak online anonymously, the steps a plaintiff must take to reveal an anonymous defendant’s identity, and how a defendant can try to assert those First Amendment rights.  Keep the principles, problems and paradoxes that I described in my last two posts in mind as we discuss Judge Kollar-Kotelly’s opinion, and as I explain why I think she was correct, and yet I’m dissatisfied with the result.

If you’ve been keeping up so far, you know that the filmmakers’ first step was to file a lawsuit against a number (5829!) of “John Does.”  Then they asked the court for permission to serve subpoenas earlier than you’re normally allowed–because there can’t really be a case without the subpoenas.  They did that, too, and the court said OK.  Then they duly issued and served the subpoenas, many of which were arguably defective, to the various major ISPs.  And some of the ISPs responded quickly with customer identities*, and others brought motions to “quash” the subpoenas.  In addition, many of the defendants, upon learning of the subpoenas, sought to quash the subpoenas.

In violation of the Cable Act of 1975, in my opinion. The Cable Act does not (as far as I know) serve as a basis to block a subpoena; all it does is give an aggrieved customer a civil cause of action with which to sue the ISP for statutory damages.  I’ll blog about this some other time.  The fact that the relevant section of the Cable Act uses a broader definition of cable provider (broad enough to capture many ISPs) than the rest of the Cable Act is not well appreciated.

The individual defendants made four main arguments.  First, they argued that they lived outside of Washington D.C., and thus weren’t subject to the personal jurisdiction of the court.  Second, they said that they have a privacy right not to be identified.  Third, they said that the subpoenas were defective and the ISPs shouldn’t have responded.  Fourth, they said that thousands of defendants are just too many and that they must have been “misjoined” to the lawsuit.

Judge Kollar-Kotelly, who is a very good judge, ruled against the defendants on all counts.  She held that she couldn’t rule on the personal jurisdiction questions because she doesn’t know who the defendant are, so that question was premature.**  She further held that the consumers (as opposed to the ISPs) didn’t have standing to challenge any defects in the subpoenas.  And she held that joinder (i.e., combining many defendants in the same lawsuit) was there to promote judicial efficiency, and at this stage, it’s not really that hard to manage a suit with thousands of defendants (but that might change as she learns more about the defendants).

**  So that is how the judge resolved that paradox.  Courts appear to be taking a hard line against the plaintiffs on this issue in cases like this, even when they permit the discovery of the customers’ identities.  The end result will likely be a mass dismissal of nearly all of the defendants (i.e., the ones that don’t live or work in D.C.).  The big question is whether the filmmakers will chase the defendants to their home states and file a number of lawsuits across the country (with the possibility of later recombining them into a single multi-district lawsuit).  It seems to me they have to, if they’re serious about this project.

What about the privacy interests?  What about free speech?  Is Judge Kollar-Kotelly one of those judges who doesn’t give the First Amendment enough weight in deciding whether to “out” an anonymous speaker?  How could she ignore the well-developed (if fractious) federal caselaw on the subject?  From some of the commentary I’ve read, you’d think Judge Kollar-Kotelly simply blew it, or worse.

The problem is that free speech barely enters into the discussion because of what the defendants are being accused of:  copyright infringement.  You’ll notice from my earlier general discussion that the classic case for protecting online anonymity was to encourage robust debate and guard against chilling effects.  But, here, the defendants are alleged to have made illegal copies of the filmmakers’ movies.  There’s some expressive content in doing so–you indicate what movies you like and perhaps comment on whether your actions should perhaps be legal–but not much.***  At least, nothing like writing, “Mayor Brown is corrupt and I have the photos to prove it!”  Or even “Growco is going down in flames!”

***  The leading decision on this point is Sony Music Entertainment v. Does, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), which was written by Judge Chin, now of the Second Circuit, the same judge who handled the head-snappingly complex Cartoon Network/Cablevision case involving cable-supplied DVR services, and Google books lawsuit.  It turns out that Judge Kollar-Kotelly had dealt with this precise issue before in Arista Records LLC v. Does, 551 F. Supp. 2d 1 (D.D.C. 2008), which was skeptical of the idea that free speech should play a significant role in anonymous online speech issues.  If this case had involved core political speech, I’m not that confident that her ruling would be different, based on her reasoning in Arista.  Be that as it may, reviewing the caselaw leads one to the conclusion that, no matter how you slice it, anonymous defendants accused of copyright infringement can have their identities discovered.

This made Judge Kollar-Kotelly’s decision easy, and correct.  The filmmakers get the opportunity to obtain redress from infringers, and the defendants have a chance to defend themselves.  Just like any other lawsuit.  And yet…

I’m not going to make a habit of expressing opinions in my blog.  It’s not meant to be my personal soapbox.  It’s meant to be educational.  Besides, just because I know enough to blog about it doesn’t mean I’m such an expert that I can formulate a really solid opinion about a complex policy.  I’m making an exception here because this is a subject that I’ve studied and care about.

…and yet it doesn’t seem entirely fair for those who are mis-identified.  Yes, they now have a chance to defend themselves, to show that they aren’t the ones who downloaded the movies.  But lawsuits, even “slam-dunk” ones, are not cheap for ordinary citizens to defend.  You have to pay a lawyer.  You are taken away from more immediate  work and family tasks to focus on the lawsuit.  You have to rummage through your files and computers to respond to “discovery requests.”  You have to “freeze” the information on your home computer because it’s now evidence in the case, and the mere act of using it might cause “spoliation” of evidence.  And then there is the gnawing fear in the back of your mind that somehow everything will go wrong and you’ll be found liable despite your innocence.

If previous mass-defendant copyright-infringement cases are any guide, there will be hundreds, perhaps thousands, of defendants who have been mis-identified and will have to spend money, time and sanity to clear their names.  Some will cave in and pay a small settlement because it’s cheaper and easier.  This doesn’t seem right.

The answer is not, however, to make it harder to sue anonymous downloaders of copyrighted material.  The answer is to make sure that those who are wrongly sued are compensated by the copyright holders, and that the copyright holders are incentivized to be careful at the outset and to drop defendants when it becomes clear that a mistake was made.  Right now, there’s little downside to a plaintiff if it makes a mistake, or if it persists in a lawsuit when it’s clear that the defendant was misidentified.  The only thing protecting such defendants is “Rule 11,” which is a kind of smell test for new lawsuits.  Rule 11 motions are expensive and nasty, and besides, the plaintiffs‘ actions should be found to pass the smell test.  So Rule 11 is not enough.  Plaintiffs should be on the hook for their mis-identifications, in an amount sufficient to compensate the misidentified parties and also to get the plaintiff’s attention.

The Copyright Act already has a potential mechanism for this:  the awarding of a successful defendant’s attorney’s fees and costs.  This will allow defendants to hire lawyers to adequately defend their rights.  Since the fees will only increase the more the plaintiff persists, the plaintiff will have an incentive to investigate early, drop obvious mistakes, and work with defendants to obtain correct identifications.  For this to work, though, the award has to be pretty much automatic, in cases where a defendant has been misidentified in a mass-defendant case, regardless of the copyright holder’s good faith.  After all, if you sue 5829 defendants, you can hardly say you were surprised when you learn that you made a few hundred mistakes.

Thanks for reading!