A Legal Blog by Aaron | Sanders, PLLC


The Art of Ruling on the Free-Speech Right to Speak Online Anonymously

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…

Read More»

The Expendables 2: Revenge of the Obscure Venue Statute

How a Switch in Time Saved 23,322 John Does (Their Identities, for Now, at Least)

In a series of posts a couple of weeks ago, I discussed an important decision out of the West Coast case* regarding anonymous internet speech.  In that decision, U.S. Judge Kollar-Kotelly refused to stop (“quash”) subpoenas that had been issued to ISPs for purpose of identifying 5829 anonymous defendants, who were accused of downloading the plaintiff’s movie using BitTorrent.  I mentioned in those posts that this was one of several such BitTorrent-movie cases pending in the District of Columbia.  A few of those other cases belong to Judge Wilkins, and Judge Wilkins has just done a remarkable thing in a case involving The Expendables:  on his own volition, he has refused to let such subpoenas even issue.

 *  I think I sometimes accidentally called this the “Blue Coast” case.  Blue Coast is a better name than West Coast, but I should nevertheless try to get it right.  Something I didn’t realize about West Coast when I wrote those posts is that, unlike most of the other cases, the movie at issue is pornographic.  Perhaps that’s why the anonymous defendants were so motivated to protect…

Read More»

The Thrilling (Anti)Climax of WestCoast Anonymity Case

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…

Read More»

The First Amendment Right to Speak Online Anonymously

And the Legal Trail Plaintiffs Can Follow Through the Internet to You

In my last blog entry, I said I wanted to discuss this opinion, issued out of West Coast Productions Inc. v. Does, in which some independent filmmakers sued 5829 anonymous defendants for allegedly downloading their films using BitTorrent, in violation of copyright law.  This opinion is the culmination of the filmmakers’ (more or less* successful) attempt to identify the anonymous defendants, some of whom resisted pretty strenuously, so they could be named and served with process. I explained the general contours of the First Amendment right to speak anonymously, and the interests that had to be balanced.  Now I want to put these rights into some real-world context by discussing the steps the filmmakers took to learn the identities of the defendants.

*  The filmmakers won the right to learn the defendants’ identities, but they still have a few procedural hurdles, which are proving troublesome.

The filmmakers in this case found themselves with a pretty typical problem:  they knew the IP addresses that were used in carrying out the allegedly wrongful act, but that they weren’t enough to identify the actual person.  It’s usually fairly easy to figure…

Read More»

The First Amendment Right to Anonymous Online Speech

And its Limtits… Explaining the Decision to Disclose All Anonymous Defendants’ Identities in Blue Coast Productions v. Does

While I was literally “between offices” last month, this decision was handed down in a high-profile case, West Coast Productions, Inc. v. Does, pending in United States District Court (i.e., trial-level court) for Washington, D.C.  It is one of three cases pending in that court brought by independent filmmakers against thousands* of ordinary citizens who are accused of downloading movies using the BitTorrent streaming protocol.  The filmmakers say that they can tell what movies were downloaded and to what IP address, but (for reasons I’ll explain later), that’s not enough information to find out exactly who did the downloading.  For that, they need information being held by the defendants’ various ISPs.  They asked the court for permission, sent out civil subpoenas, a lot of people objected, and motions were filed.  In her decision, Judge Colleen Kollar-Kotelly said that the filmmakers could find out what they wanted to know from the defendants’ ISPs.

*  Literally.  There are 5829 defendants in this one case alone.

As some of you know**, Internet speech is (along with the Stored Communications Act) an area of special interest…

Read More»