Request for subpoena to unmask anonymous defendants in prospective Internet defamation case did not set forth “cause of action” or initiate judicial proceedings.

Tendler v. www.jewishsurvivors.blogspot.com, No. H031130, 2008 WL 2352497 (Cal.App. 6th Dist. June 10, 2008)

Some people (anonymously) set up several blogs on Google’s Blogger, and posted some nasty things about Rabbi Tendler. Rabbi Tendler got an Ohio state court to issue subpoenas to Google, requiring Google to turn over the IP addresses used to create the offending blog posts. Google refused to comply with the Ohio subpoenas, so Rabbi Tendler requested a California court issue subpoenas (which Google would more likely respond to) based on the Ohio subpoenas.

The Electronic Frontier Foundation and Public Citizen stepped in on behalf of the anonymous bloggers (the “Does”) and moved to quash the subpoenas. The following week, the Does filed an anti-SLAPP motion under California Code of Civil Procedure section 425.16, seeking to “strike [the] proceeding” and recover attorney’s fees.

Section 425.16, the anti-SLAPP statute, provides, in relevant part that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” A prevailing defendant under this statute can recover his or her attorney’s fees.

The trial court granted the anti-SLAPP motion and awarded about $20,000 in attorney’s fees to the Does. Rabbi Tendler sought review with the California Court of Appeal. The appellate court reversed.

The court looked to the plain meaning of the statute, observing that section 425.16 requires that the cause of action to be stricken must be contained in a complaint, cross-complaint, petition or similar pleading initiating a judicial proceeding. The request for subpoena in this case was not any of those sorts of pleadings, and it did not initiate a judicial proceeding.

The Does looked for support from the decision of Krinsky v. Doe 6, 159 Cal.App.4th 1154 (2008). The court refused, however, to find Krinsky to be instructive. In that case, the court held that a motion to quash a subpoena to discover the identity of an anonymous defendant in an Internet defamation case should be granted unless the party seeking discovery makes a prima facie showing on at least one of his or her claims. The Does (or should we say their EFF and Public Citizen attorneys) argued that this means a request for subpoena is tantamount to a cause of action. But this court held otherwise. Krinsky sets the standard for a motion to quash, but does not set the requirements for the request itself.

[In re Subpoena Issued Pursuant to the Digital Millennium Copyrigt Act to: 43SB.com, No. 07- 6236, 2007 WL 4335441 (D. Idaho, December 7, 2007).]

When the general counsel for Melaleuca, Inc. saw some negative content someone had posted about the company on the Web site 43rdstateblues.com, he sent a cease and desist letter demanding the content be removed. The letter, however, did not accomplish its intended purpose. Instead, the site owner posted the entire letter.

Melaleuca did not give up, but just adapted its strategy. It served a DMCA subpoena [see 17 U.S.C. §512(h)] on the site, seeking to identify the person who posted the letter “so that [Melaleuca] might seek redress for copyright infringement.” Melaleuca claimed that its copyright rights in the letter were infringed when it was posted online. (Claiming copyright in cease and desist letters is not a new tactic.  See, e.g., here and here.) 

The website moved to quash the subpoena, asserting, among other things, that the letter was not subject to copyright protection, and that the failure by Melaleuca to establish a prima facie case of copyright ownership was fatal to the subpoena.

The court denied the motion to quash. The Web site had argued that Melaleuca could not own a copyright in the letter, according to 17 U.S.C. 102(b)’s exclusion of “any idea, procedure, process, system, method of operation, concept, principle or discovery” form copyright protection. But the court rejected that argument.

Declining to “go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash [the] subpoena,” the court found that Melaleuca’s copyright registration in the letter was sufficient to establish ownership of a valid copyright.  As for alleged copying, the court found that posting of the entire letter was sufficient.

There are a couple of interesting observations to be made from this decision.  First, unlike cases in which plaintiffs seek to uncover the identity of anonymous defendants accused of defamation [see here], this court gave – relatively speaking – little inquiry into the merits of the plaintiff’s case.  Perhaps it felt that such an analysis was not necessary given that the Copyright Office had already determined copyrightable subject matter to exist (when it issued the registration certificate).

A second interesting question arises when one considers how the court might have ruled had the defendant asserted fair use as a basis for the motion to quash. (Doesn’t it seem like posting a cease and desist letter on the Internet, ostensibly for eliciting public ridicule, is a transformative use?) Given the fact intensive inquiry of a fair use analysis, the court would have probably reached the same conclusion, if anything to put off the factfinding until later.  But would a court do that in other cases where the offending, anonymous use is more obviously fair?