Appeals Court Can't Decide Whether It Should Protect Critic's Anonymity, Boots Free Speech Case Back To Lower Court

A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It's a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics.

Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT's books on his "Amthrax" blog. SMT filed a DMCA takedown notice with the blog's hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book.

This quick concession didn't stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked.

SMT moved to compel disclosure of Doe's identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity.

Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe's information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed.

The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]:

With the explosion of anonymous Internet speech, courts have begun to develop balancing tests weighing the First Amendment right to anonymous speech against a plaintiff's interest in unmasking an anonymous defendant. See id. at 1175-76 (compiling balancing tests). All of these cases, however, have dealt with anonymity rights during the discovery process. No case has considered the issue presented here-whether and under what circumstances a court can properly protect a party's anonymity after judgment. This is an important distinction. The prejudgment cases often deal with a plaintiff's need to unmask a defendant in order to effect service of process.

[...]

In contrast, the entry of judgment against a Doe defendant largely eliminates these concerns because the plaintiff will have established liability. On the other hand, where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant.

Setting itself up with opposed theories, the court spends the next several questions thinking out loud. Public litigation carries a presumption of open judicial records, which includes identifying information pertaining to both sides of lawsuit. In this case, however, not only is one side still anonymous, but even the plaintiff is unaware of the true identity of the person it's suing. This stands in contrast to sealed cases where both parties are known to each other, but withheld from the general public. The fact that Doe lost a copyright infringement case weighs heavily against his continued anonymity.

[W]here a Doe defendant's speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.

This chilling effect could be argued using nothing more than Doe's anti-MLM blog. Certainly, there's plenty of evidence (both judicial and anecdotal) companies -- especially questionable ones -- like to silence critics. One good way of silencing persistent critics is eliminating their anonymity, making them more likely to be sued or otherwise harassed by the entities they criticize.

But the Appeals Court gets hung up on the copyright infringement, even though there's little on the record here showing Doe was a repeat offender. He could have been more careful in his use of the copyrighted MLM manual, but his quick compliance with SMT's demands and district court's order shows he had no intention of thumbing his nose at copyright law.

Doe's compliance seems to weigh against an order for unmasking on remand, even though Doe is definitely the loser in this legal battle. The Appeals Court tries to weave both of these disparate views into a single, mostly-cohesive text, but fails.

We do not agree either that the district court lacks discretion to allow Doe to remain anonymous or that Doe's legitimate First Amendment right to speak anonymously is collateral to these proceedings. Although Doe's infringing speech is not entitled to First Amendment protection, that speech occurred in the context of anonymous blogging activities that are entitled to such protection. An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.

Further, we do not agree that allowing Doe to remain anonymous would necessarily diminish the impact of the ordered injunctive relief. The dissent's suggestion that a failure to unmask Doe would obligate the district court and Team's attorneys to monitor Doe's activity is inapposite because the district court declined to enter any ongoing injunctive relief. Since Doe has already complied with all aspects of the court's order, there will be no need for monitoring regardless whether the district court ultimately decides to unmask Doe. Finally, to the extent that the concerns identified by the dissent cut in favor of unmasking Doe, the district court should consider those factors on remand.

The Appeals Court sounds like it might be inclined to let Doe keep his anonymity, but pulls back from that bright line and boots it back to the lower court. The good news, as far as Doe is concerned, is that the lower court already ruled in favor of his arguments against unmasking. Nothing in this ruling suggests the lower court should feel compelled to overturn its earlier decision.

SMT's insistence the infringer/critic be unmasked smacks of pure vindictiveness. Doe has complied with all requests and orders, leaving very little for SMT to truly complain about, especially as the lower court did not issue an order requiring monitoring of Doe's blogging for possible further violations. If SMT is given a win, it will do more than chill Doe's speech. It will chill the speech of anyone criticizing SMT and its business practices. It certainly wouldn't be a good precedent to set: allowing more powerful entities to unmask weaker ones if they can secure some form of judgment in a court. Hopefully, the lower court will come to the same conclusion the second time around.