Presumption In Favor Of Unmasking Copyright Infringers

The US Court of Appeals for the Sixth Circuit recognized "a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff." Signature Management Team v. Doe, Case No. 16-2188 (6th Cir., Nov. 28, 2017) (White, J) (Suhrheinrich, J, dissenting). The split panel declined to adopt a per se rule in favor of unmasking, however, preserving a district court's power to maintain a defendant's anonymity where unmasking would chill the defendant's "significant . . . non-infringing anonymous speech."

This case involved a dispute between a multi-level marketing company, Signature Management Team (SMT), and an anonymous blogger and critic of the industry (Doe). Doe posted a link on his blog to a downloadable copy of one of SMT's full textbooks. SMT sent Doe a take-down notice. Doe quickly removed the hyperlink. Nevertheless, SMT sued Doe, alleging one count of copyright infringement. Doe asserted defenses of fair use and copyright misuse.

During discovery, SMT sought to compel disclosure of Doe's identity. The district court denied the request, applying the balancing test set forth by the Northern District of California in the 2011 case Art of Living Foundation v. Does 1-10. Under that test, a plaintiff seeking to unmask a defendant during discovery must first produce competent evidence supporting a finding of each fact essential to a given cause of action. Once the plaintiff satisfies this burden, the court must weigh the harm that unmasking would work upon the defendant's First Amendment right to anonymous speech against the plaintiff's need to pursue its claims. In denying SMT's request, the district court concluded that because there was a chance that Doe could prevail on his fair-use defense, he faced significant and irreversible harm if unmasked. However, the district court did compel Doe to reveal his identity to the court and to SMT's lawyer, subject to a protective order barring them from sharing this information with SMT.

Ultimately, the district court granted summary judgment for SMT, but only limited injunctive relief. The injunction required Doe to destroy all copies of the infringing work in his possession. However, the court declined to enter a permanent injunction or to unmask Doe. In declining to unmask Doe, the district court again applied the balancing test in Art of Living. SMT appealed.

Addressing what it...