Where First Amendment Internet Anonymity Rights Collide With Copyright

• Publication year: 2015
• Citation: Vol. 28 No. 2
• Author: By Peter Afrasiabi

Where First Amendment Internet Anonymity Rights Collide with Copyright

By Peter Afrasiabi

Peter Afrasiabi

Does the First Amendment allow Internet users to engage in acts of anonymous copyright infringement free from discovery of their identity? How do litigators on either side of this question engage in such discovery?

Perhaps not surprisingly, cases from around the country diverge, and cases within the Ninth Circuit conflict. The Ninth Circuit has not yet addressed copyright infringement anonymity rights, although it has established a framework that balances First Amendment anonymity rights with discovery rights. Navigating the case law is critical for practitioners seeking discovery from alleged anonymous infringers and for those defending against such efforts. It is likewise critical for practitioners seeking discovery in non-copyright cases where the actor is cloaked in anonymity because of the inherent privacy the Internet affords.

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Balancing Anonymity Rights in Copyright Cases

The Second Circuit has developed an approach that balances anonymity rights with discovery rights in copyright cases. In Arista Records, LLC v. Doe 3 (2d Cir. 2009) 604 F.3d 110, 112, plaintiff sought a discovery order for the identity of alleged copyright infringers who downloaded copyrighted music files. Arista Records subpoenaed the Internet Service Provider, which in turn notified the underlying user. The user unsuccessfully sought to quash the subpoena on the basis of a First Amendment right to anonymity. The Second Circuit affirmed and created a test examining five factors: (1) a showing of plaintiff's prima facie case, (2) specificity of the discovery request, (3) availability of alternate means to secure the identity, (4) the need for the subpoenaed information, and (5) the anonymous party's privacy expectations.

The court held that Arista made a prima facie showing of copyright infringement by virtue of alleging ownership of the music files and their downloading in violation of the Copyright Act's exclusive reproduction right. That alone sufficed, and the anonymous defendant's privacy assertions were rejected because any right to privacy related to the acts of infringement could not be asserted where the anonymous person hides "behind a shield of anonymity." (Id. at 124.) Specifically, "to the extent that anonymity is used to mask copyright infringement or to facilitate such infringement by other persons, it is unprotected by the First Amendment." (Id. at 118.) Accordingly, the party seeking discovery secured the discovery, and the anonymous Internet user could not shield itself from discovery or from the consequences of the anonymous acts of copyright infringement. Other Second Circuit cases applying the Arista balancing test to copyright infringement questions have answered the ultimate discovery question similarly: the discovery flows. (See, e.g., Sony Music Entertainment v. Does 1-40 (S.D.N.Y. 2004) 326 F.Supp.2d 556...