anonymity – Page 2 – Attorney Evan Brown

December 5, 2018 Anonymity, Copyright

Bittorrent copyright plaintiff got much gentler treatment in New York federal court

Less than a week after a federal judge in Washington D.C. lambasted serial copyright plaintiff Strike 3 Holdings, calling it a “troll” and characterizing its tactics as “smacking of extortion,” another federal judge – this time in New York – gave Strike 3 much gentler treatment, finding that “there is no evidence to support Defendant’s conclusory claims that Plaintiff is engaging in copyright troll litigation tactics in the instant lawsuit”.

In the case of Strike 3 Holdings, LLC v. Doe, — F.Supp.3d —, 2018 WL 6166873 (W.D.N.Y, Nov. 26, 2018), the court denied the John Doe defendant’s motion to quash a subpoena sent to Doe’s ISP seeking to discover his identity so that plaintiff could serve him with the complaint.

The court did, however, include a nod to Doe’s privacy interests in ordering that he be permitted to proceed anonymously in the lawsuit. It modified the protective order to provide that the defendant not be referred to using his initials, but instead as “John Doe subscriber assigned IP address 69.204.6.161” in any public filings.

Strike 3 Holdings, LLC v. Doe, — F.Supp.3d —, 2018 WL 6166873 (W.D.N.Y, Nov. 26, 2018)

Evan Brown is a Chicago attorney helping clients in matters dealing with copyright, technology, the internet and new media. Call him at (630) 362-7237, send email to ebrown [at] internetcases dot com, or follow him on Twitter @internetcases

November 26, 2018 Anonymity, Litigation, Trademarks

Anonymous online trademark infringer can be identified through subpoena to domain registrar

Plaintiff trademark owner noticed that an unknown party was using plaintiff’s mark to sell email templates online without plaintiff’s authorization. After the unknown infringer’s domain name registrar (the case does not say whether it was also the web host) refused to take down the allegedly infringing content, plaintiff filed suit against the “John Doe” defendant. Since it needed to learn the identity of the defendant to move the case forward, plaintiff asked the court for early discovery that would permit plaintiff to send a subpoena to the registrar that would compel the registrar to identify its customer.

The court granted the motion for leave to take early discovery. It applied the standard set out in OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011) (citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 578-80 (N.D. Cal. 1999)), which requires that prior to early discovery being permitted, a plaintiff must show:

Plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
Plaintiff has identified all previous steps taken to locate the elusive defendant;
Plaintiff’s suit against defendant could withstand a motion to dismiss; and
Plaintiff has demonstrated that there is a reasonable likelihood of being able to identify defendant through discovery such that service of process would be possible.

On the first factor, plaintiff had alleged that the Doe defendant owned or was using the specified domain name associated with the offending website to sell email templates using plaintiff’s trademark.

As for the second factor, plaintiff had contacted the domain name registrar, and asked that the information be taken down, but the registrar refused to do so. The domain name alone was not sufficient for plaintiff to identify the Doe defendant, and plaintiff had no other means to identify the Doe defendant besides the registrar’s record which it refused to provide without a subpoena.

Regarding the third factor, plaintiff made the required showing by alleging that it holds a valid trademark for its mark that the Doe defendant used to sell products on the offending website.

And concerning the fourth factor, the plaintiff had alleged that the registrar was the registrar for the domain name associated with the offending website and that it had stated it would pass the complaint information on to the website owner. The court found that plaintiff had thus demonstrated that a subpoena to the registrar should reveal the identity of the Doe defendant.

One should note this court’s willingness to permit early discovery as being in contrast to another court’s recent apparent disdain for a copyright troll plaintiff seeking the identity of an anonymous online infringer.

Marketo, Inc. v. Doe, 2018 WL 6046464 (N.D.Cal. Nov. 19, 2018)

November 20, 2018 Anonymity, Copyright, Electronic Discovery, Litigation, Privacy

Court labels copyright plaintiff as a troll and shuts down efforts to ID anonymous infringer

When a copyright plaintiff does not know who a particular alleged infringer is, it must first send a subpoena to the ISP assigned the IP address used to commit the alleged infringement. But the rules of procedure do not allow the sending of subpoenas until after the 26(f) conference – a meeting between the plaintiff and defendant (or their lawyers) to discuss the case. A plaintiff cannot have a 26(f) conference if the defendant has not been served with the complaint, and the complaint cannot be served unless the defendant’s identity is known.

So you can see the conundrum. To break out of this not-knowing, plaintiffs in situations like this will ask the court’s help through a motion for leave to take early discovery. That way the plaintiff can learn who the defendant is, serve the complaint, and move the case forward.

In the recent case of Strike 3 Holdings v. Doe, Judge Royce Lamberth of the U.S. District Court for the District of Columbia put a stop to the efforts of a plaintiff that it called a copyright troll right to its face (or at least right in the text of the opinion). The court denied Strike 3’s motion for leave to take early discovery to learn the identity of an unknown BitTorrent user accused of downloading pornography.

The court held that the plaintiff’s request was not specific enough, and the privacy interests of the unknown defendant, together with the social harm of being wrongfully accused of obtaining “particularly prurient pornography” were not outweighed by the trollish plaintiff’s need for the information.

Key to the court’s ruling was the idea that a subpoena in circumstances like this must be able to actually identify a defendant who could be sued. The court noted, however, that

Strike 3 could not withstand a 12(b)(6) motion in this case without resorting to far more intensive discovery machinations sufficiently establishing defendant did the infringing—examining physical evidence (at least the computers, smartphones, and tablets of anyone in the owner’s house, as well as any neighbor or houseguest who shared the Internet), and perhaps even interrogatories, document requests, or depositions. Strike 3’s requested subpoena thus will not—and may never—identify a defendant who could be sued.

The opinion is an entertaining read and conveys the judge’s clear frustration with copyright troll plaintiffs. Below are some of the more memorable quips.

Regarding the flaws of using IP addresses to identify people:

[Plaintiff’s] method [of identifying infringers] is famously flawed: virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another.

Regarding the public shame of being accused of infringing porn:

… But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address’s subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn-up associations with the websites Vixen, Blacked, Tushy, and Blacked Raw. The first two are awkward enough, but the latter two cater to even more singular tastes.

How trolls are quick to flee:

Indeed, the copyright troll’s success rate comes not from the Copyright Act, but from the law of large numbers. … These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don’t seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.

It’s pretty much extortion:

Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown. This Court declines.

The court’s decision to deny discovery is anything but the rubber stamp approach so many judges in these kinds of cases over the past several years have been accused of employing.

Strike 3 Holdings v. Doe, 2018 WL 6027046 (D.D.C. November 16, 2018)

November 6, 2017 Anonymity, Privacy

Puzzling privacy analysis in decision to unmask anonymous accused copyright infringers

Plaintiff porn company sued an unknown bittorrent user (identified as John Doe) alleging that defendant had downloaded and distributed more than 20 of plaintiff’s films. Plaintiff asked the court for leave to serve a subpoena on Optimum Online – the ISP associated with defendant’s IP address – prior to the Rule 26(f) conference. (As we have recently discussed, leave of court is required to start discovery before the Rule 26(f) conference, but a plaintiff cannot have that conference unless it knows who the defendant is.) Plaintiff already knew defendant’s IP address. It needed to serve the subpoena on the ISP to learn defendant’s real name and physical address so it could serve him with the complaint.

The court went through a well-established test to determine that good cause existed for allowing the expedited discovery. Drawing heavily on the case of Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), the court evaluated:

(1) the concreteness of the plaintiff’s showing of a prima facie claim of copyright infringement,

(2) the specificity of the discovery request,

(3) the absence of alternative means to obtain the subpoenaed information,

(4) the need for the subpoenaed information to advance the claim, and

(5) the objecting party’s expectation of privacy.

The court’s conclusions were not surprising on any of these elements. But it’s discussion under the fifth point, namely, the defendant’s expectation of privacy, was puzzling, and the court may have missed an important point.

It looked to the recent case involving Dred Pirate Roberts and Silk Road, namely, United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017). Leaning on the Ulbricht case, the court concluded that defendant had no reasonable expectation of privacy in the sought-after information (name and physical address) because there is no expectation of privacy in “subscriber information provided to an internet provider,” such as an IP address, and such information has been “voluntarily conveyed to third parties.”

While the court does not misquote the Ulbricht case, one is left to wonder why it would use that case to support discovery of the unknown subscriber’s name and physical address. At issue in Ulbricht was whether the government violated Dred Pirate Roberts’s Fourth Amendment rights when it obtained the IP address he was using. In this case, however, the plaintiff already knew the IP address from its forensic investigations. The sought-after information here was the name and physical address, not the IP address he used.

So looking to Ulbricht to say that the Doe defendant had no expectation of privacy in his IP address does nothing to shed information on the kind of expectation of privacy, if any, he should have had on his real name and physical address.

The court’s decision ultimately is not incorrect, but it did not need to consult with Ulbricht. As in the Sony Music case from which it drew the 5-part analysis, and in many other similar expedited discovery cases, the court could have simply found there was no reasonable expectation of privacy in the sought-after information, because the ISP’s terms of service put the subscriber on notice that it will turn over the information to third parties in certain circumstances like the ones arising in this case.

Strike 3 Holdings, LLC v. Doe, 2017 WL 5001474 (D.Conn., November 1, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

November 3, 2017 Anonymity, Copyright, Electronic Discovery, Litigation

Court allows Microsoft to unmask unknown Comcast users accused of infringement

A federal court in Washington state has given the green light for Microsoft to subpoena records from Comcast to discover the identity of the person or persons associated with an IP address used to activate thousands of unauthorized copies of Microsoft software.

Statue_of_Anonymus_(Budapest,_2013)

Generally, in federal court litigation, a party cannot serve discovery requests or subpoenas until after the plaintiff and defendant have conferred (in a Rule 26(f) conference). But when the plaintiff does not know the identity of the defendant, there is a bootstrapping problem – discovery needs to be taken to find out the defendant with whom to conduct the conference. In situations like this, the plaintiff seeking to unmask an unknown defendant will file its complaint against one or more “John Does,” then ask the court for leave to serve discovery prior to the Rule 26(f) conference.

That is what happened in this case. It is a common tactic used by parties legitimately seeking to enforce intellectual property, as well as parties that may be considered copyright trolls. See, e.g., this early bittorrent case from 2011.

Microsoft filed its complaint and also filed a motion for leave to take discovery prior to the Rule 26(f) conference. Finding that good cause existed for the early discovery, the court granted the motion.

It held that

(1) Microsoft had associated the John Doe Defendants with specific acts of activating unauthorized software using product keys that were known to have been stolen from Microsoft, and had been used more times than were authorized for the particular software,

(2) Microsoft had adequately described the steps it took in an effort to locate and identify the John Doe defendants, specifically by utilizing its “cyberforensics” technology to analyze product key activation data, identifying patterns and characteristics which indicate software piracy,

(3) Microsoft had pleaded the essential elements to state a claim for copyright and trademark infringement, and

(4) the information proposed to be sought through a subpoena appeared likely to lead to identifying information that would allow Microsoft to serve the defendants with the lawsuit.

Microsoft Corp. v. John Does 1-10, 2017 WL 4958047 (W.D. Wash., November 1, 2017)

Image courtesy Dmitrij Rodionov under Creative Commons Attribution-Share Alike 3.0 Unported license. Licensed granted hereby under same terms.

February 20, 2015 Anonymity, Defamation

Complaint site does not have to identify its users

Petitioner filed an action in New York state court seeking to compel PissedConsumer.com to disclose the identity of the person or persons who posted certain statements to the site. These statements criticized petitioner for allegedly failing to fulfill an advertising promise to give the user a $500 gas card. The anonymous user went on to complain that petitioner “will forget about you and … all the promises they made to you” once “you sign on the dotted line.”

The trial court denied the petition to compel PissedConsumer.com to turn over the names of its users. Petitioner sought review with the Appellate Division. On appeal, the court affirmed.

It held that the lower court properly denied the petition since petitioner failed to demonstrate that it had a meritorious cause of action as required to obtain pre-action discovery:

Nothing in the petition identifies specific facts that are false and when the statements complained of are viewed in context, they suggest to a reasonable reader that the writer was a dissatisfied customer who utilized respondent’s consumers’ grievance website to express an opinion. Although some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a non-defamatory meaning, grounded in opinion.

The court seemed to recognize the importance of anonymous speech, and that one must not lightly cast aside its protections. If you’re going to go after an online critic, best have a cause of action that you can actually plead.

Woodbridge Structured Funding, LLC v. Pissed Consumer, — N.Y.S.2d —, 2015 WL 686383, (February 19, 2015)

Evan Brown is an attorney in Chicago helping clients with technology, intellectual property and new media issues.

January 9, 2015 Anonymity, Defamation

Court orders Twitter to identify anonymous users

Defamation plaintiffs’ need for requested information outweighed any impact on Doe defendants’ free speech right to tweet anonymously.

Plaintiff company and its CEO sued several unknown defendants who tweeted that plaintiff company encouraged domestic violence and misogyny and that the CEO visited prostitutes. The court allowed plaintiffs to serve subpoenas on Twitter to seek the identity of the unknown Twitter users. Twitter would not comply with the subpoenas unless and until the court ruled on whether the production of information would violate the users’ First Amendment rights.

The court ruled in favor of the plaintiffs and ordered Twitter to turn over identifying information about the unknown users. In reaching this decision, the court applied the Ninth Circuit analysis for unmasking anonymous internet speakers set out in Perry v. Schwarzenegger, 591 F.3d. 1126 (9th Cir. 2009). The court found that the requested discovery raised the possibility of “arguable first amendment infringement,” so it continued its analysis by weighing the balance between the aggrieved plaintiffs’ interests with the anonymous defendants’ free speech rights.

The Perry balancing test places a burden on the party seeking discovery to show that the information sought is rationally related to a compelling governmental interest and that the requested discovery is the least restrictive means of obtaining the desired information.

In this case, the court found that the subpoenas were narrowly tailored to plaintiffs’ need to uncover the identities of the anonymous defendants so that plaintiffs could serve process. It also found that the “nature” of defendants’ speech weighed in favor of enforcing the subpoena. The challenged speech went “beyond criticism into what appear[ed] to be pure defamation, ostensibly unrelated to normal corporate activity.”

Music Group Macao Commercial Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015).

May 22, 2012 Anonymity, Defamation, First Amendment

Does the constitution protect anonymity?

Yes, the constitution protects one’s right to speak anonymously, but only to a certain extent. The question of one’s First Amendment right to speak anonymously comes up pretty often in situations where a plaintiff seeks to unmask the identity of someone who is alleged to have committed an illegal act against the plaintiff online. Most often it is a plaintiff seeking to unmask an online critic in a defamation lawsuit.

internet anonymity

In 1995, the U.S. Supreme Court held in McIntyre v. Ohio Elections Commission that a state statute prohibiting the distribution of anonymous campaign literature was unconstitutional. The court said that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S., at 342.

One would be hard pressed to overstate the importance of anonymous speech. Three and a half decades before the McIntyre decision, the Supreme Court observed that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960). And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

But free speech protection has its limits. A person does not have a First Amendment right to defame another. So when one party seeks to “de-anonymize” another using the court system, the judge must strike a balance between the plaintiff’s right to seek redress and the defendant’s interest (if any) in remaining anonymous.

Courts have come up with a variety of balancing tests. Though different courts have come up with different ways of conducting the analysis, the test always involves looking at the strength of the facts the plaintiff puts in his or her initial filing. The more likely it appears there is real defamation, for example, the less likely the anonymous speech will be protected. If the strength of those allegations gets beyond a certain tipping point, the risk of an anonymous free speech violation becomes outweighed by the need for the plaintiff to get relief for the unprotected, unlawful speech.

Evan Brown is a Chicago technology and intellectual property attorney, representing businesses and individuals in a variety of situations, including matters dealing with online anonymity and anonymous speech.

Photo credit: petter palinder under this license.

Court tosses copyright claims against 244 accused BitTorrent infringers

Digital Sins, Inc. v. John Does 1–245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012)

Plaintiff Digital Sins filed a copyright lawsuit against 245 anonymous BitTorrent users. The court dismissed the case against all but one of the unknown John Does, finding that the defendants had been improperly joined in one lawsuit. The judge observed that “there is a right way and a wrong way to litigate [copyright infringement claims], and so far this way strikes me as the wrong way.”

Federal Rule of Civil Procedure 20(a)(2) provides that defendants can be joined into one case if, for example, the plaintiff’s right to relief arises out of the same transaction, occurrence, or series of transactions or occurrences, or if there is any question of law or fact common to all defendants.

In this case, the court found that those requirements had not been met. Plaintiff’s allegations that the defendants merely commited the same type of violation in the same way, did not satisfy the test for permissive joinder under Rule 20. There was no basis, according to the court, to conclude that any of the defendants was acting other than independently when he or she chose to access the BitTorrent protocol.

The court went on to find that having all the defendants joined in one action would not give rise to any valid judicial economy. Any such economy from litigating all the cases in a single action would only benefit plaintiff, by not having to pay separate filing fees to sue each defendant. Moreover, trying 245 separate cases in which each of 245 different defendants would assert his own separate defenses under a single umbrella would be unmanageable.

Photo credit: nshontz

January 26, 2012 Anonymity

Ron Paul not allowed to find out who posted mean video about Jon Huntsman on YouTube

Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 12-00240 (N.D. Cal. January 25, 2012)

(Hat tip to Venkat for posting a link to this decision.)

Ron Paul’s campaign — Ron Paul 2012 Presidential Campaign Committee, Inc. — sued some John Doe defendants in federal court over an offensive video attacking former (but then current) opponent Jon Huntsman. The video demonstrated a gross insensitivity toward Chinese culture, and was posted to YouTube and promoted on Twitter by a user calling himself NHLiberty4Paul.

Since the campaign did not know the true identity of the John Doe defendants, it asked the court for leave to take “expedited discovery” so that it could serve subpoenas on YouTube and Twitter. (The Federal Rules of Civil Procedure do not allow early discovery like this unless the court specifically permits it.)

The court denied the campaign’s motion seeking early discovery. It held that the campaign failed to show the required “good cause” for expedited discovery set forth in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999).

Under the Seescandy.com standard, in determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as Doe defendants, courts consider whether:

(1) the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
(2) the plaintiff has identified all previous steps taken to locate the elusive defendant;
(3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and
(4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.

The court found that the campaign failed to address these required issues. One is left to wonder whether there is enough of Paul’s campaign left to make it worthwhile to try again.