A Judge May Have Found a Better Way

Courts have been struggling for several years now with how treat online anonymous speech when faced with requests to unmask the identities of the anonymous speakers. I outlined the issues previously in these two blog posts, but the problem amounts to:

  • Balancing the right to speak anonymously (an aspect of the First-Amendment right of free speech) against the right to seek and obtain redress against wrongdoers.
  • The sneaking suspicion that anonymous speaker is just trying to duck answering for their wrongdoing.
  • The sneaking suspicion that the supposedly aggrieved party is really just trying to unmask and embarrass the anonymous speaker.

It’s not just that courts have come up with a bewildering variety of tests to balance the competing rights, it’s the breadth of attitudes that courts have displayed on this issue. Some courts really privilege the right to speak anonymously. Others don’t seem to give a toss.

Another problem is that these tests are supposed to be straightforward and easy to apply–“bright-line” rules–but in practice, they usually don’t survive their application to the next set of facts. Thus, although they’re meant to be applied broadly, they tend to be limited to the facts that gave rise to them.

That’s why those of us who follow such things are excited about Judge Koh’s decision in the case Art of Living Foundation v. Does, pending in the Northern District of California. The judge reviewed the previous tests and, without criticizing them, distilled an insight: they all seem like variations on the test used for whether to grant preliminary injunctions.

Preliminary Injunctions in a Nutshell

For those who aren’t litigators, you can read a bit more about preliminary injunctions in one of my posts about the notorious APP STORE case. But here’s the short version: a preliminary injunction is an order by the court, typically issued early in the case, to stop some activity by the defendant that is causing the plaintiff a kind of harm that can’t be fixed with money only. Preliminary injunctions are effective only while the case is pending. The idea is that, sometimes the court can’t afford to wait the years it’ll take to have a trial and issue a permanent injunction, or else so much irreversible damage will have been done that there’d be little point in having the trial.

Here’s a simple example. Let’s say that Bob possesses a painting, Small Green Lump (inspired by the Vogon poem), and he has entered into a contract to sell it to Hans in Germany. The problem is, you think you actually own the painting. It may or may not be worth much, but it’s of some sentimental value. You can’t just go out and buy another one. So, you sue Bob. The problem is that, by the time there’s a trial, Bob will have already sent the painting to Hans, and it’d be almost impossible to get it back. True, if you won, you could get damages, but you’ll never get the painting back. So, you not only sue Bob but you move for a preliminary injunction to stop Bob from transferring the painting.

The problem with preliminary injunctions is that they require courts to make a tough decision without all the facts before it. No matter how it rules, it runs the risk of causing unnecessary harm to one of the parties. To take the example above, if the court preliminarily enjoins transfer of the painting, and it turns out you don’t really own it, then the seller is deprived of being able to sell it when it wanted, and perhaps the whole sale will be scotched. If the court refuses to preliminarily enjoin transfer, and it turns out you really do own the painting, then you’ll probably never get it back.

Courts have developed (usually) four-point test* for dealing with motions for preliminary injunction:

Standards vary slightly from jurisdiction to jurisdiction. If you need to know details, you might consider getting Injunctive Relief by Stoll-DeBell, et al., published by the ABA.

  1. The strength of the plaintiff’s case (also known as “likelihood of success on the merits”).
  2. Whether the failure to stop the complained-of activity really isn’t compensable with money (i.e., do you really need an injunction?).
  3. Balance of the hardships of granting versus not granting the injunction.
  4. The public interest.

This test might seem a little too imprecise, but its flexibility is its strength. The court has a tough call to make on an undeveloped record. The test is essentially a balance between the facts and law, on the one hand, and the court’s innate sense of justice and expediency, on the other. The best part about it is that courts see it all the time. They’re comfortable with it. And while litigators will never feel too comfortable, they’re at least familiar with how it works.

Why Preliminary Injunction Standard Fits Anonymous Online Speech

Now, if you go back and review all of those old anonymous online speech decisions–at least, the ones that actually care about free speech–you’ll notice they all have some sort of heightened evidentiary requirement. Normally, when you file a complaint, you can just make allegations, including those “on information and belief.” You don’t need to prove anything. But these anonymous online speech decisions all insist that you put forth some evidence to back your claim, though they disagree about how much. The idea is to make sure, before the court unmasks anyone, (1) you’re serious about the lawsuit, and (2) you have some chance of winning. After all, the worst case scenario, for a societal point of view, is that you unmask your online critic but lose the case.

Another element most of these decisions have in common is some sort of showing that the information is genuinely needed by the plaintiff, or a showing that the defendant has a heightened (or weakened) entitlement to anonymity, or both Several of these decisions come right out and call it a balancing test.

It’s true that these decisions also typically require a showing that the plaintiff has sought to identify the defendant by other means or that the defendant has received adequate notice of the attempt to unmask him or her. But those points are minor. (If the defendant is moving to quash the subpoena, for example, it’s self-evident that he or she has received adequate notice.

At this point, aren’t we already 90% on our way to the preliminary injunction test? Why not just go the rest of the way and devise a slightly modified test? In such a test, courts must consider, in a just and equitable way, the plaintiff’s likelihood of success, the balance of the harms, the irreparability of those harms, and the public interest?

Judge Koh’s Application of the Test

Here’s the case that was before Judge Koh. The plaintiff, The Art of Living Foundation (“TAOLF”) is an international organization that promotes the teachings of “His Holiness Ravi Shankar.” The defendants are (allegedly) disgruntled former members. The defendants run blogs that are highly critical of TAOLF. Among other things, they have published one of TAOLF’s books, supposedly so they could criticize it.

TAOLF sued on grounds of defamation, misappropriation of trade secrets (apparently secret meditation and yoga techniques?) and copyright infringement. The court threw out the defamation claims and stayed the trade-secret claim, leaving only the copyright claim. TAOLF also served a subpoena on the defendant’s ISP, seeking to identify them.

Meanwhile, the case actually proceeded into discovery, with the anonymous defendants issuing and responding to do interrogatories and document requests, while remaining anonymous. They even filed a motion for summary judgment.

The defendants moved to quash the subpoena. The magistrate judge denied the motion. The defendants appealed to the district judge (technically, they objected to the magistrate’s report and recommendation), and Judge Koh granted the motion to quash.

The first thing Judge Koh had to do was deal with Sony Music Entertainment, Inc. v. Does, 326 F. Supp. 2d 556 (S.D.N.Y. 2004). I discussed the decision briefly here. Most commentators, including myself, have viewed Sony Music as holding that, when copyright infringement is at issue, the expressive content is very “thin” and the right to speak anonymously (as by anonymously downloading copyrighted content) is correspondingly thin, almost non-existent.

Judge Koh didn’t think so. She thought that Sony Music didn’t involve any protected speech at all. As a result, it was inapposite for a case about anonymous speech. In other words, you don’t look at the underlying claims–e.g., copyright infringement–but at whether expression was really conveyed.

In the TAOLF case, expression was definitely involved. Although the defendants published the entire book on their blogs, they were clearly doing so in order to criticize it. In other words, there was a distinction to be drawn between downloading songs and movie that you didn’t pay for, and publishing a work in order to criticize it. Both involve copyright infringement, but only the latter involved protected speech.

Curiously, Judge Koh spends almost no evaluating the strength of TAOLF’s copyright case, although the defendants raised questions about authorship, and there was also a question about fair use (not a particularly strong one, if you ask me). This is because she decided that, no matter how strong TAOLF’s case was, the balance of the hardships favored the defendants.

The judge started by putting a thumb on the scale. Losing one’s anonymity is, in itself, an irreparable harm. True enough, but wouldn’t there be a thumb on the other scale, representing the loss of the right to seek redress?

Well, that’s the interesting part.   The defendants don’t seem to be trying to avoid liability by maintaining their anonymity. They have been participating in discovery, for example. They appear to have consented to jurisdiction (removing the need to know where they live). They’re just proceeding anonymously, and seeking only to shield their identities. As a result, TAOLF isn’t in any danger of losing the right to obtain redress from the defendants. Perhaps in a more typical case, where the defendants are trying to avoid litigation, the plaintiff’s right to redress will be perfectly balanced by the defendant’s right to anonymity.

Further, the defendants proffered proof that they would be subjected to embarrassment, ridicule and retaliation if TAOLF could find out who they were. In light of their main criticism that TAOLF is a kind of cult, that evidence carried a good bit of weight with the judge.

Final Thoughts and Questions

The TAOLF case has a few additional take-aways:

  1. Just because there is a claim for copyright infringement, that doesn’t mean Sony Music automatically applies (regardless of whether you think the speech in Sony Music was non-protectable or slightly protectable). What matters is whether (and to what degree) there is protectable speech involved.
  2. By proceeding with the litigation anonymously, the defendants sent a message that they were serious about the importance of their anonymity.
  3. Why can’t more cases proceed against anonymous defendants? Why is it always an either/or proposition? One practical reason for a reluctance to keep defendants anonymous during the course of litigation is that it’s generally a good thing for plaintiffs to know whom they are suing. Plaintiffs, after all, have the right to pick and choose which potential defendants to sue, and they tend not to sue friends, allies, people with too many resources and those with too few. In other words, knowing who you’re suing helps keep the docket clear. The answer to this, I suppose, is that online anonymous speech cases are still rare enough not to make much of a difference to dockets, and the First Amendment is just that important.
  4. Should there be “thumbs on the scales,” and if so, how hard should judges press them?

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.