Metropolitan News-Enterprise


Thursday, May 15, 2014


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Court of Appeal Blocks Subpoena for Identity of Online Commenter

Justices Say Third Party Privacy Rights Outweigh Any Benefit to Defendant in Copyright Suit




The Court of Appeal for this district yesterday blocked a subpoena that would have required the owner of an online music publication to submit to a forensic examination of his servers in order to identify an anonymous commenter.

Div. One overturned Los Angeles Superior Court Judge Richard Stone’s ruling that Digital Music News LLC and its owner Paul Resnikoff must allow representatives of Escape Media Group, owner of music streaming service Grooveshark, to conduct the search. Escape claims that it needs the information in order to defend itself in a copyright infringement suit in New York state.

Universal Music Group’s affiliate UMG Recordings Inc. sued Escape in state court in 2010. It alleged the defendant committed common-law copyright infringement in reproducing user-uploaded, copyrighted sound recordings, storing them on its servers, and distributing copies to other users, to its own profit.

Escape countered, among other things, that it is protected by the safe-harbor provisions of the Digital Millenium Copyright Act. The DMCA, among other things, protects an online service provider from liability for copyright infringement by third parties if it meets certain requirements, including that it take down infringing materials upon notice by the copyright owner.

The LexisNexis news site Law 360 recently reported that UMG and others are pursuing a separate federal copyright infringement suit against Escape, also in New York.

Anonymous Commenter

In January 2011, an anonymous commenter using the screen name “Visitor” posted on Digital Music News claiming to “work for Grooveshark” and stating “the administration” required employees to upload files to the Grooveshark database, contrary to the company’s claim that it merely hosted third party uploads as permitted by the DMCA. The next day, “Visitor”—apparently the same commenter—said that Grooveshark was lying when it claimed to remove copyrighted music when record labels and artists complained merely putting the materials on “backup” to be made available at a later time.

Escape applied to the Los Angeles Superior Court for a subpoena under the Interstate and International Depositions and Discovery Act. Digital moved to quash the subpoena on grounds that discovery would violate the First Amendment rights of itself and the anonymous third party, as well as the journalist shield law.

It also claimed that any information that would identify the commenter had long since been deleted from its servers.

Fragmented Data

Stone, however, said it was possible that fragmented data identifying Visitor might be retrieved, and that Escape had laid out a prima facie case that the comments were libelous and thus not protected by the First Amendment. He ordered Digital to comply with the subpoena, and in a subsequent order required Escape to provide Digital with a backup server on which Digital was ordered to preserve a virtual machine image of its server, which would then be examined by Escape’s expert.

The Court of Appeal stayed both orders and asked to the parties to brief whether Visitor’s identity was protected by the privacy clause of the state Constitution, and also whether the proposed discovery was calculated to lead to the discovery of admissible evidence as required by Code of Civil Procedure §2017.010.

The court then heard oral argument last month and concluded that both the privacy clause and the discovery statute bar the proposed disclosure.

Justice Victoria Chaney said evidence regarding Visitor could not aid Escape in its DMCA defense because if the comments are true, there would be no such defense. Besides, she noted, a New York state appeals court has ruled that the DMCA’s safe harbor only applies to federal infringement claims, not those raised under state common law.

Even if the information was discoverable under §2017.010, Chaney said, the state Constitution requires that a higher standard be met in order to compel the disclosure of an anonymous commenter’s identity.

She cited Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, holding that traditional protection of anonymous speech extends to the Internet. Such protection, the court held in that case, makes it possible “for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal.”

Fairly balancing the privacy rights of the commenter against the discovery needs of the litigant, Chaney said, does not support the result reached by the trial judge.

While Visitor needs anonymity to protect himself or herself from “interference or suppression,” as well as from retaliation if he or she actually is an Escape employee, “Escape’s need for the discovery is practically nonexistent,” the justice wrote.

If Visitor doesn’t really work for Escape, the comments have little or no probative value, Chaney explained. And even if he or she does work for the company, disclosure will be of little or no benefit to Escape, she wrote.

Chaney explained:

“In no sense is Visitor’s identity essential to a fair resolution of the UMG lawsuit. This is not a case where the veil of anonymity must be drawn aside to afford a victim redress for the anonymous speaker’s defamation…obscenity…libel…copyright infringement…misleading or commercial speech…or use of ‘fighting words.’…Visitor has done nothing more than provide commentary about an ongoing public dispute in a forum that could hardly be more obscure—the busy online comments section of a digital trade newspaper. Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indicium of reliability and little weight. We will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.”

The case is Digital Music News LLC v. Superior Court (Escape Media Group, LLC), 14 S.O.S. 2392.


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