Posted on May 11, 2010 by Timothy Tobin

Second Circuit Rules Anonymity of Internet Users Not Protected by First Amendment

Thanks to Eric Bukstein in the Hogan Lovells privacy group for providing this report.

On May 3, 2010, in Arista Records v. Doe 3, a Second Circuit panel issued an opinion finding that an Internet user’s right to remain anonymous is not sufficient to prevent an ISP from revealing his identity in a copyright infringement dispute. The court held that a record label may subpoena information about Internet users connected to IP addresses if there is sufficient evidence that the IP addresses had been used to illegally share music. 

A group of record labels had evidence suggesting that specific IP addresses connected with the State University of New York at Albany (“SUNYA”) had been used to infringe on the record labels’ copyrights by sharing music on peer-to-peer networks. The record companies subpoenaed SUNYA for disclosure of the names and contact information of the individuals associated with the IP addresses. After being notified of the subpoena by SUNYA, the defendant moved to quash the subpoena, arguing that “the First Amendment affords a qualified right to use the Internet anonymously.” In the district court, both a magistrate judge and a district judge both rejected this argument and refused to quash the subpoena. 

In affirming, the Second Circuit held that “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.” The court adopted a five-factor test set forth in a different case by the U.S. District Court for the Southern District of New York to determine whether an Internet user’s right to anonymity requires that a subpoena be quashed. These factors are:

           

(1) [the] concrete[ness of the plaintiff’s] showing of a prima facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means to obtain the subpoenaed information, . . . (4) [the] need for subpoenaed information to advance the claim, . . . and (5) the [objecting] party’s expectation of privacy.

 

Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004). The court found that all five factors weighed against the defendant and his right to anonymity.

The court also dismissed the defendant’s arguments that the record labels should be required to meet a heightened pleading standard in order to compel the identification of anonymous Internet users.  The court held that the facts in the complaint were sufficient to state plausible copyright infringement claims, and this was sufficient to compel SUNYA to reveal the defendant’s identity.

This opinion follows several other cases recently discussed in the Chronicle of Data Protection in which courts addressed whether an ISP is required to disclose the identities of Internet users. 

 

Last August, in Cohen v. Google, a New York court granted a motion forcing Google to reveal the identity of an anonymous blog poster who had allegedly defamed a Manhattan-based model on a blog entitled “Skanks of NYC.” Also last August, in Solers, Inc. v. Doe, the D.C. Court of Appeals articulated its own five-part test to determine whether to quash a subpoena seeking the identity of an anonymous defendant who had allegedly provided a tip to the Anti-Piracy Division of the Software & Information Industry Association that Solers, Inc., a software company, was using unlicensed software. The court granted leave for the plaintiff to amend its complaint to present evidence sufficient to meet these new standards.

 

Looking forward, the question will often not be whether a court will force an ISP to reveal the identity of an anonymous Internet user, but rather how strong a plaintiff’s pleadings must be before a court will allow for a subpoena to compel the identity of an anonymous Internet user. 
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Posted on September 23, 2009 by Winston Maxwell

Amendment to French HADOPI "three strikes" law adopted by parliament

This past June France enacted an Internet anti-piracy law commonly known as the "HADOPI" or "three strikes" law, because after a certain number of warnings an online infringer's Internet access would be cut off.   On June 10th, the French Constitutional Court found a portion of the law unconstitutional.  Specifically, the court held that because terminating an individual's Internet access affects that individual's right to free expression, a fundamental right, a decision to terminate access must be made by a court after a careful balancing of interests.  Because the HADOPI law gave Internet access termination power to an agency, the court held that grant of authority unconsitutional.  Further background on this decision can be found in our update on the HADOPI law and the French Consitutional Court's decision .

On September 22, 2009, the French parliament passed a bill intended to remedy the enforcement gap left by the court's decision.  This bill, known as HADOPI 2,  empowers French courts, instead of the HADOPI administrative agency, with the authority to cut off the Internet access of copyright infringers or of individuals who are manifestly negligent in their duty to protect their broadband access line against illegal downloading.

The cornerstone of the new law is an affirmative duty imposed on French broadband subscribers to take measures to ensure that their broadband access is not used for infringing file sharing.  If the subscriber ignores this duty and the broadband access is used for illegal downloading, the subscriber of the line may have his or her Internet access cut off for a limited time.  If the subscriber installs certain approved protection technologies (and no one is yet sure what those technologies will be), the subscriber will be deemed to have fulfilled his or her duty of care.

The new law, like the first HADOPI law, will be scrutinized by the Constitutional Court, so the game's not over yet.  

Later this fall, the French government will publish several decrees intended to define how the new administrative authority authorized by HADOPI will operate, as well as how the privacy aspects of this law (for example, the handling of IP addresses) will be dealt with.  The French CNIL will need to authorize copyright societies to collect IP addresses and send them to the new administrative authority.

Further background reading on this topic can be found in the English translation of the French Constitutional Court's June 10, 2009 decision, which contains fascinating language on the appropriate balance between copyright, privacy and freedom of expression.  It is similar to the European Court of Justice's decision in the Promusicae case:  none of the rights is absolute, a balancing between copyright and privacy is permitted, but it has to be done with care.  For those of you wondering whether the right to privacy is part of the French constitution, it is, as set forth in paragraph 22 of the French Constitional Court's decision.

French speakers can read here the text of HADOPI 2 law, or watch the video of  French Minister of Culture, Frédéric Mittérand's opening statement before the National Assembly. 
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