Downloader Beware: Copyright Infringer Can’t Hide Behind First Amendment
In an April 29, 2010 decision that has been hailed as a big coup for the record labels — Arista Records LLC v. Doe 3 — the United States Court of Appeals for the Second Circuit has held that a record company’s right to protect itself from copyright infringement trumps the alleged infringer’s First Amendment right to anonymity on the Internet.
The plaintiffs in Arista were 13 major recording companies who sued in the Northern District of New York alleging that the sixteen defendants — who were known only to plaintiffs by the Internet Protocol (“IP”) addresses which were assigned to them by their Internet Service Provider (“ISP”), had infringed their copyrights by, without permission or consent, downloading and/or distributing various songs to the public through an online file-sharing network. See Arista Records LLC v. Does 1-16, 2009 U.S. Dist. LEXIS 12159, at *1 (N.D.N.Y. Feb. 18, 2009) (“Arista I”).
Attached to the complaint was an exhibit which listed, as for each Internet user defendant, his or her IP address, the name of the file-sharing network that was used, the titles of the various songs that were downloaded from the IP address, and, as to each song, which plaintiff owned the copyright. Arista I, at *3.
In the complaint, plaintiffs requested damages as well as a court order (known as “injunctive relief”) prohibiting any further infringement of plaintiffs’ copyrights.
In order to learn the identities of the defendants, the record companies requested the court’s authorization to serve a subpoena on the defendants’ ISP, the State University of New York at Albany (“SUNYA”), which would require SUNYA to disclose, among other things, each defendant’s name, address and telephone number. Arista I, at *5.
Not surprisingly, the defendants moved to quash the subpoena. {Quash! What a great word! It is Middle English for “smash” and it means, of course, to deny the request, which, in this case, would mean that the defendants’ identities would remain secret.}
In support of their motion to quash, the defendants argued that the First Amendment right to free speech includes the right to use the Internet anonymously. Arista I, at *9-10.
Although the defendants conceded that “the First Amendment is not a safe haven for copyright infringement,” they nevertheless argued that unless the record companies could show very particular detailed information about what they were doing wrong, their identity was none of anyone’s business. Arista I, at *11.
Every court that heard their argument disagreed, starting with a magistrate judge in February 2009. The District Court agreed. See Arista I, at *22 and Decision and Order of District Court Judge Glenn T. Suddaby dated March 5, 2009 (“Arista II”).
On appeal, defendant-appellant Doe 3 tried to use two recent Supreme Court cases {Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)} to argue that the record companies were not specific enough in their complaint to force disclosure of their identities. See Arista Records LLC v. Doe 3, 2010 U.S. App. LEXIS 8879, at *21 (2d Cir. 2010) (“Arista III”).
The Second Circuit disagreed, pointing out that neither of those recent Supreme Court cases requires a higher standard but “only enough facts to state a claim to relief that is plausible on its face.” Arista III, at *25 (quoting Twombly, 550 U.S. at 570)).
Not to mention the fact that attached to the record companies’ complaint was an exhibit that described, among other things, the IP address, time of infringement, title of the song that was copied, name of P2P network used to copy, owner of the copyright in that song, and exact number of audio files in the file-sharing folder at that IP address. Of course, the Second Circuit did mention that fact, which was enough detail for the record companies to win the argument. Arista III, at *28-29.
More fundamentally, the Second Court recognized that although the First Amendment provides protection for anonymous speech, it “does not, however, provide a license for copyright infringement.” Arista III, at *19 (citing, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 555-57, 569 (1985) and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 849 (11th Cir. 1990)). Nor does it give “a license to trammel on legally recognized rights in intellectual property.” Arista III, at *19 (quoting Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979)).
Rather, as the Second Circuit made clear, “to the extent that anonymity is used to mask copyright infringement or to facilitate such infringement by other persons, it is unprotected by the First Amendment.” Arista III, at *19.
Tuvyah (Terry) Aronoff chairs the Corporate Practice Group at Schwell Wimpfheimer & Associates and specializes in Entertainment law. He has, on behalf of content owners, negotiated deals with Amazon.com, Sony, Barnes & Noble, Google, Nokia, Samsung, and digital developers including WOWIO, Sweet Caesar, BlueSkyNorth Ltd. and others. He can be reached at taronoff@swalegal.com or 646 328 0781. Melinda Spitzer is a member of the Litigation Practice Group and has handled a wide range of commercial litigation matters in state and federal courts in areas such as contracts, intellectual property, trade secrets, and employment. She can be reached at mspitzer@swalegal.com or 646 328 0797.
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