Federal court applies Seescandy.com test to unmask anonymous defendants in copyright and privacy case

Liberty Media Holdings, LLC. v. Does 1-59, 2011 WL 292128 (S.D. Cal., January 25, 2011)

Plaintiff porn company sued 59 anonymous defendants it knew only by IP address for violation of the Stored Communications Act (SCA), the Computer Fraud and Abuse Act (CFAA) and for copyright infringement. Since plaintiff did not know who the defendants were, it had to jump through a few hoops to find out their names.

The court rewarded such hoop-jumping by ordering that the defendants’ identities be turned over.

Hoop #1 – The Cable Communications Policy Act of 1984

A subpoena to the defendants’ internet service providers would reveal the needed information. But these ISPs, being governed by the Cable Communications Policy Act of 1984, could not turn over their subscribers’ information without a court order. (See 47 USC 515(c)(2)(B))

Hoop #2 – Discovery prior to the Rule 26(f) conference

What’s more, a plaintiff cannot start conducting discovery (and a subpoena is a discovery tool) until after it has had the initial conference with the defendant (the Rule 26(f) conference). But how can a plaintiff confer with a defendant it does not know? There is a bootstrapping problem here. The court has to step in and issue an order allowing the discovery be had.

Hoop #3 – Balancing injury versus right to anonymous speech

And getting that court order is a bit problematic and nuanced when one is dealing with anonymous defendants. The courts recognize the conflict between a need to provide injured plaintiffs with a forum in which they may seek redress for grievances, and the right of John Doe defendants to use the internet anonymously or pseudonymously when appropriate.

So judges apply a balancing test to weigh these interests. Different courts apply different tests. Some apply a very demanding standard, requiring plaintiffs to present enough facts to withstand a hypothetical motion for summary judgment. Other cases require a lesser burden be carried, looking merely to whether the complaint would survive a motion to dismiss. That’s the standard the court applied in this case.

The Seescandy.com standard

It looked to the 1999 case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999) which articulated the following test:

  • First, the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that (the) defendant is a real person or entity that could be sued in federal court …
  • Second, the (plaintiff) should identify all previous steps taken to locate the elusive defendant …
  • Third, Plaintiff should establish to the Court’s satisfaction that plaintiff’s suit against (the) defendant could withstand a motion to dismiss … Plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed the act.

In this case, the court found that each of these criteria had been met across the board.

It found that plaintiff had identified the defendants as best it could. Plaintiff provided the court with the unique IP addresses assigned to each defendant and the ISP that provided each defendant with internet access. Further, the requested discovery was necessary for plaintiff to determine the names and addresses of each defendant who performed the allegedly illegal and infringing acts.

The only information plaintiff had regarding the defendants was their IP addresses and their ISPs. Therefore, there were no other measures plaintiff could have taken to identify the defendants other than to obtain their identifying information from their ISPs.

And the court found the allegations supporting each of the claims were sufficient to survive a motion to dismiss.

As to the SCA, the complaint alleged that defendants intentionally accessed plaintiff’s web servers, which are facilities where electronic communication services are provided, defendants had no right to access the copyrighted materials on plaintiff’s website, and defendants obtained access to these electronic communications while these communications were in electronic storage.

On the CFAA claim, the complaint alleged that defendants unlawfully and without authorization entered into plaintiff’s computer server, which was used in interstate commerce, where plaintiff’s copyrighted materials were contained, stole plaintiff’s copyrighted materials, valued in excess of $15,000, and as a result of such conduct, caused plaintiff to suffer damage. Based on these facts, 18 USC 1030(g) authorized plaintiff’s civil action.

And as for copyright infringement, plaintiff alleged that it is the owner of the copyrights for certain motion pictures, which were accessed, reproduced, distributed and publicly displayed by defendants. Also, plaintiff alleged that defendants, without authorization, intentionally accessed, reproduced and distributed plaintiff’s copyrighted works onto their local hard drives or other storage devices.

Publishing child sex abuse victim’s name on the web was not a privacy violation

Doe v. Fankhauser, 2010 WL 4702295 (N.D. Ohio, November 30, 2010)

County clerk immune from law suit over posting court document on government website.

Plaintiff Jane Doe was the victim of physical and sexual abuse when she was a minor. In the criminal case against the perpetrator, Doe’s name was redacted, and she and her family were allegedly assured that her name would not be publicly disclosed. But someone in the county clerk’s website scanned some documents from the criminal case that had Doe’s name in them and posted those electronic documents on the county’s website, making them publicly available.

So Doe sued the county clerk for violation of Doe’s constitutional due process rights and for common law invasion of privacy. The clerk moved to dismiss. The court granted the motion.

The court found that the clerk was protected by judicial immunity. Judges and court personnel who perform judicial and quasi-judicial functions are absolutely immune from suits for damages arising out of the performance of official judicial acts. In this case, the court found that the clerk’s actions in permitting the documents to be scanned and posted required a type of judgment closely related to the judicial process and therefore deserving of immunity.

Interestingly, the court held that the clerk was entitled to immunity from suit regardless of how careless she may have been. There was no loss of immunity merely because a mistake was made and the original document, without redaction, was made available to the public. “Where there is immunity, it applies even in the face of allegations of bad faith, malice, or reckless indifference.”

Makes you feel confident that the government is watching out for your privacy, doesn’t it?

Court allows early discovery to reveal identity of anonymous libel defendant

[This is a guest post by attorney Caroline Belich. Caroline is a Chicago native, former Michigan State volleyball player, and recent admitee to the California bar with particular interest in the First Amendment.]

Zoosk Inc. v. Does, 2010 WL 5115670 (N.D. Cal. December 9, 2011)

The U.S. District Court for the Northern District of California recently issued an order allowing an internet service provider (ISP) to release an anonymous subscriber’s personal account information. Plaintiff Zoosk is an online social dating network. A Doe defendant created a profile and displayed nude pictures on the site, describing herself as an adult entertainer. After plaintiff permanently blocked the account for violating its terms of use policy, someone set up a Twitter account and posted some allegedly defamatory statements about plaintiff.

After filing a complaint alleging libel per se, Plaintiff asked for leave to take limited early discovery from two ISPs (Comcast and Time Warner Cable) to discover the identity of the Doe defendants. Under the Cable Communications Policy Act, a cable operator may disclose personal identifying information of a subscriber pursuant to a court order authorizing the disclosure. And pursuant to FRCP 26(f), a court may authorize early discovery before the Rule 26(f) conference if the plaintiff shows good cause.

Here the District Court granted the motion, finding that plaintiff showed good cause. First, plaintiff identified the potential Doe defendants with sufficient specificity by determining eight email addresses were using the Twitter account. And plaintiff was able to show how it discovered the emails using publicly-available information. Also, plaintiff’s claims were pleaded with enough particularity to withstand a motion to dismiss. Finally, early discovery was likely to lead to discovery of Doe defendants’ identities so process could be served, because both ISPs had personal information for the eight email addresses involved. As a result, the information these defendant-subscribers provided to Comcast and Time Warner for the sole purpose of using their internet services could also be used to identify them in this defamation claim.

Section 230 shields Google from liability for anonymous defamation

Black v. Google Inc., 2010 WL 3746474 (N.D.Cal. September 20, 2010)

Back in August, the U.S. District Court for the Northern District of California dismissed a lawsuit against Google brought by two pro se plaintiffs, holding that the action was barred under the immunity provisions of 47 USC 230. That section says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Plaintiffs had complained about a comment on Google (probably a review) disparaging their roofing business.

Plaintiffs filed and “objection” to the dismissal, which the court read as a motion to alter or amend under Fed. R. Civ. P. 59. The court denied plaintiffs’ motion.

In their “objection,” plaintiffs claimed — apparently without much support — that Congress did not intend Section 230 to apply in situations involving anonymous speech. The court did not buy this argument.

The court looked to the Ninth Circuit case of Carafano v. Metrosplash as an example of a website operator protected under Section 230 from liability for anonymous content: “To be sure, the website [in Carafano] provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content.” As in Carafano, Google was a passive conduit and could not be liable for failing to detect and remove the allegedly defamatory content.

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