Freedom of speech is not freedom from speech. Anyone who voluntarily puts themselves up in a public forum, and expounds on an issue, should expect to get pushback from those who disagree.
Never is this more apparent than with the internet. People wish to (and do) spout off on any number of subjects, but act all wounded in hurt when they themselves are criticized. Therefore, the remedy is to spout off under an assumed name or anonymously. Indeed, there are whole businesses whose “service” is hiding the identities of people on the internet. 1
Personally, I take much less seriously anything written under anything other than the authors true name. My name is on every piece that I write. I do so fully expecting that I am going to get slagged by people who disagree with me. Indeed, someone (who used a username) called me “a f*ckin’ moron” on Reddit. Goes with the territory.
Which brings us to the case of Signature Management Team, LLC v. Doe. 2 Defendant Doe apparently has beef with “multi-level marketing companies” and criticizes them on a website called “Amthrax,” 3 an obvious dig at Amway. For whatever reason, Doe refuses to put his own name on his blog posts.
Doe was sued by Team, not for defamation, but for copyright infringement. He posted a hyperlink to the complete text of Team’s copyrighted work “The Team Builders Textbook.” 4 A DMCA notice was served on Automattic, Inc., the webhost, and the link was removed. 5 Team followed with the lawsuit, not seeking damages, but for injunctive relief and seeking an order revealing Doe’s identity. 6
Doe, in turn, claimed (all together now) fair use. How the posting the entirety of a lengthy copyrighted work online, even if you are critical of it, constitutes fair use is a truly aggressive assertion, especially where the fair use section of the copyright act contemplates only a “portion” of the work being used. 7
Doe also asserted he has a First Amendment right to speak anonymously, and therefore his identity should not be disclosed.
There is absolutely no doubt that Doe has a first amendment right to speak anonymously. 8
The problem is that copyright infringement is not protected speech under the First Amendment.
“The First Amendment does not…provide a license for copyright infringement…Thus to the extent anonymity is used to mask copyright infringement or to facilitate such infringement by other persons, it is unprotected by the First Amendment.” 9
So, if Doe’s fair use defense fails, so should his right to remain anonymous.
The District Court rejected Doe’s fair use defense, but refused to order that his identity be disclosed to Team. Team’s lawyers were allowed to know his identity, but could not pass this information on to Team itself. 10
Team appealed and the Sixth Circuit Court of Appeals reversed in a split decision.
The majority opinion takes the position that the right of public access to court records largely trumps Doe’s right to remain anonymous.
“[W]e hold that like the general presumption in favor of open judicial records, there is also a presumption in favor of unmasking anonymous defendants when judgement has been entered for a Plaintiff.” 11
Yet the Court also rules that the District Court needs to balance the public’s right to know against the potential harm to the Defendant in part by “showing that he engages in substantial protected speech that unmasking will chill.” 12
This is where the majority opinion loses me. The majority is essentially inviting the District Court to speculate on what “might” happen in the future “if” Doe continues to engage in “substantial protected speech,” whatever “substantial protected speech” might possibly mean.
But Doe did not engage in an exercise of “protected speech.” Doe engaged in copyright infringement which even the majority concedes is not “protected speech.” 13 So, let’s flip it around. Suppose, in the future, Doe does the same thing again, but to a different multi-level marketing company? Intentional conduct is certainly an important element in copyright infringement cases. Indeed, if the infringement was committed “willfully,” this enables the Plaintiff to ask for enhanced statutory damages under section 504 (c)(2). It goes without saying that committing the same act that you have already been held legally liable for is the very definition of “willfully.” If Doe’s name was not revealed to the public in this scenario, no one would know that Doe was starting to engage in a pattern of illegal conduct.
The dissent picks up on this point:
“Ordering injunctive relief against Doe without identifying him minimizes the effect of the court’s order, downplays the significance to Doe, encourages future misconduct, and hinders Team’s ability to monitor compliance. The first three concerns are substantiated by Doe’s motion for attorney’s fees. In the motion, Doe asserts that “Doe prevailed,” [citation omitted] since the district court “neither granted an injunction against future infringement of the Work, nor did it strip Doe of his anonymity.” [citation omitted]. Thus, according to Doe, Team obtained “only a technical or de minimis victory.” [citation omitted] In Doe’s eyes—an adjudged copyright infringer—he won this case because the district court did not unmask him. Leaving him masked gives him a blueprint to do this all over again.” 14
No one is stating that Doe cannot engage in future anonymous speech. What should be the case is that a violation of the law should carry with the loss of anonymity in connection with that violation of the law. It’s sort of like a convicted child pornographer arguing his name should not be made public because his kiddie porn website also contains an anonymous blog in favor of lowering the age of consent.
Or as the dissent succinctly puts it:
“The majority’s concern here is like that of an overprotective parent. Doe should not be shielded from the consequences of his own actions, since he could have preserved his right to speak freely and anonymously by simply refraining from copyright infringement.” 15
- Cloudflare: The “Now You See Me, Now You Don’t” of the Internet ↩
- 2017 WL 5710571 Sixth Circuit Court of Appeals 2017 ↩
- Id. at 1 ↩
- Id. ↩
- Id. ↩
- Id. ↩
- 17 USC 107 ↩
- McIntyre v.Ohio Elections Commission 514 U.S. 334 (1995) ↩
- Arista Records LLC v. Doe 3 604 F.3d 110. 118 Second Circuit 2010 ↩
- 2017 WL 5710571 at 2 ↩
- Id. at 4 ↩
- Id. ↩
- Id. at 5 ↩
- Id. at 6-7 ↩
- Id. at 7 ↩