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Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Signature Management Team v. Does, a Sixth Circuit’s decision about unmasking an anonymous blogger.

Signature Management Team is a multi-level marketing company that sells materials designed to help people profit in multi-level marketing businesses.  John Doe anonymously runs a blog on which he criticizes multi-level marketing companies.  In January 2013, he posted a hyperlink to a downloadable copy of the entirety of the fourth edition of a book copyrighted by Signature, although at the time of the posting, the book was in its Ninth Edition.

After Signature became aware of the posting of the book, it served a takedown notice under the Digital Millennium Copyright Act on the blog’s host.  Doe quickly removed the hyperlink.

In September 2013, Signature filed an action against Doe, alleging one count of copyright infringement based on his publication of the book on his blog.  Signature did not request money damages – it sought only injunctive relief, including a request that the Court identify, or unmask, Doe.  Doe responded that his posting of the book was protected by fair use and copyright-misuse defenses.  He also argued he had a First Amendment right to speak anonymously, and therefore, his identity should not be disclosed.

Signature moved to compel discovery of Doe’s identity, but the District Court denied the request, after applying a balancing test.  The test includes two steps:  1) the plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and 2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant.

Under this test, the District Court concluded that unmasking an anonymous speaker is a significant and irreversible harm and, since he might win his fair use defense, declined to unmask Doe at that time.  But it did compel Doe to reveal his identity to the Court and to Signature’s attorneys under a protective order, prohibiting them from revealing it to their clients.

Doe eventually moved for summary judgment, which the Court denied.  But it indicated that it was inclined to grant summary judgment for Signature, although only to grant limited injunctive relief – namely ordering Doe to destroy all copies of the book in his possession.

Signature moved for summary judgment, which the court granted.  It denied a request for further injunctive relief.  It determined that unmasking Doe was unnecessary to ensure that he would not engage in future infringement of the work and that he had already declared that he had complied with the proposed injunctive relief, by destroying the copies of the book in his possession.

Despite winning, Signature appealed, limiting its focus to the court’s refusal to unmask Doe.  It argued that the District Court improperly disregarded the strong presumption in favor of open judicial records, that Doe is unprotected by the First Amendment since he is an adjudged copyright infringer, and injunctions must enter in the name of the enjoined party.

The Court split 2-1.  The majority began by recognizing that the First Amendment protects the right of anonymous speech.  It also noted that the balancing tests derived by Courts to determine whether to unmask an anonymous blogger have all dealt with the discovery process – not post-judgment.  Furthermore, the Court recognized that they are designed to safeguard against unmasking potentially nonliable defendants.

Of course, the Court noted, these concerns are largely eliminated where, as here, the liability of the defendant has been established.  On the other hand, where the defendant is determined to have fully complied with the relief granted, as here, there is no practical need to unmask the defendant.

The majority just turned to the presumption of open judicial proceedings.  The Court recognized that there exists a strong presumption in support of open judicial records, which can only be overcome by the most compelling reasons.  However, this burden is diminished where there is minimal public interest in learning the non-disclosed information.  Additionally, while judicial openness typically looks to the public’s interest in learning the information, there is also the interest of the parties to consider in an unmasking case.

The majority then held that, like judicial records, there is a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff.  It instructed that courts must consider both the public interest in open records and the plaintiff’s need to learn the identity to enforce its remedy.  In a case such as this, where the Doe defendant’s speech is found to be outside the protection of the First Amendment, countering the presumption will require the Defendant to show that he participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.

The presumption’s strength will also vary depending on the need to unmask the defendant in order to enforce the relief ordered by the Court.  Where there is ongoing relief, the presumption will be stronger.  But when a defendant has willingly participated in the litigation and complied with all relief ordered, the presumption will be much weaker.  The public interest in the matter will also factor in.

The majority then proceeded to give some guidance to the lower court on balancing the factors on remand.  It held that the District Court failed to consider the different interests in unmasking at the discovery and post-judgment stage and did not give sufficient attention to the presumption of open judicial records, and thus unmasking.  Therefore, the majority sent the case back for further consideration in light of its opinion.

Judge Suhrheinrich dissented.  He believed that there was no right to remain anonymous in this case because the District Court had declared that Doe’s speech was copyright infringement, and thus was not protected by the First Amendment.  While he agrees that courts should be hesitant to unmask at the discovery stage, which is not the case here.  He cannot find any authority for the argument that a known copyright infringer can protect his identity just because his infringement happens to be in proximity to protected anonymous speech.  Finally, he believed that the plaintiff has a valid need to know who infringed its works, so it can monitor compliance with the order.  He points out that Doe has argued that HE is entitled to attorney’s fees, because he prevailed, since the Court did not enter a permanent injunction and did not order Doe’s unmasking.  Judge Suhrheinrich argues this solution diminishes the effect of the judgment on Doe and undercuts the serious nature of the court’s ruling.  Therefore, he would hold that the District Court must unmask Doe.

While I disagree with both sides at the end of the day, I think the majority is closer to the right answer.  I’m not heavily persuaded by the majority’s reliance on the presumption for open judicial proceedings, because none of the records in this case were sealed.  All of the filings are available to the public should the public wish to read them.  The only information being kept hidden is the identity of the blogger, and I do not think that knowing who the blogger is would anything to the interpretation of the underlying court documents.  Thus, I just don’t find these arguments persuasive.

To a certain extent, I think the majority agrees with me more than it lets on.  Reading section E of the Court’s opinion, where it provides guidance to the District Court in balancing the factors it identified, it is hard not to come to the conclusion that the majority would not unmask John Doe if it were up to them in the first instance.  While talking about a presumption in favor of unmasking, the majority highlights all of the arguments that undercut that presumption, and they all apply here.  There is no weighty public interest at stake.  The defendant has complied with the injunction.  There is no continuing obligation on the part of John Doe.  And he participates in other protected speech.

And it is this last fact that weighs most heavily in Doe’s favor in my mind.  While it is true his publishing of the book was deemed unprotected by virtue of its infringement of copyright, it’s hard to ignore the fact that unmasking him here unmasks him permanently and in all contexts as far as his blog is concerned. While the dissent calls this a collateral issue, it strikes at the heart of protection for anonymous speech.

Since the Founding, we have relied on anonymous speech in the political arena.  The Federalist Papers, championing the Constitution, and the Anti-Federalist Papers, written by opponents of the new scheme, were all published under pseudonyms, such as Publius and the Federal Farmer.  It is not possible to unmask John Doe in the context of Signature without unmasking him in relation to his blog as a whole, and there is no doubt that the vast majority of his speech was protected.  Based on these facts, I would not support unmasking in this case.

And that’s our show.  Thanks so much for listening.  Links to the decision and other commentary are available in the shownotes to this episode at our website, summaryjudgmentpod.com.  You can reach out by e-mail at summaryjudgmentpod@gmail.com. You can like us on Facebook.  Or you can tweet thoughts and ideas to @podcastSJ.  Please remember to rate and review the podcast.  And if you like what you heard, please recommend the podcast to a friend!  See you next time for another Summary Judgment.

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