Law Of The Line

Bob Godbey

Sony Music and 16 other record companies sued 40 unidentified, and apparently unknown, "Doe" defendants for copyright infringement associated with peer-to-peer file sharing of music over the Internet. Sony subpoenaed its Internet Service Provider (ISP), which was not a party to the litigation, trying to obtain the identities of the defendants. Several defendants objected to the subpoena, arguing that a person who uses the Internet to download or distribute copyrighted music without permission is engaging in the exercise of free speech, and that the First Amendment should protect such a person's identity.

The district court began its analysis by observing that the Supreme Court has recognized that the First Amendment can protect anonymous speech, holding "[a]nonymity is a shield

from the tyranny of the majority." The court also noted that it is "well-settled" that the First Amendment's protection extends to the Internet. However, anonymous speech does not have absolute protection.

The court then reasoned that the use of peer-to-peer networks to download and distribute sound recordings qualifies as speech entitled

to some level of First Amendment protection, but that such protection is limited and subject to other considerations. The court then considered four factors to weigh the need for disclosure of the defendants' identities against their First Amendment interests: (1) a basic showing of actionable harm, (2) the specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information and (4) a central need for the subpoenaed information to advance the claim. The court concluded that the plaintiffs had made a concrete initial showing of copyright infringement, that the discovery request was reasonably specific, that there was no other way to obtain the subpoenaed information and that they needed the identities of the defendants to advance their infringement claims. The court also noted that the defendants had only a minimal expectation of privacy, because their agreement with the ISP provided that the ISP could disclose information about them "as necessary to satisfy any law." Accordingly, the court concluded that all four factors supported disclosure of the defendants' identities.

The case shows that the First Amendment applies to the Internet, and that the courts will take such claims seriously.

Bob Godbey is a partner in the Honolulu law firm of Godbey Griffiths Reiss. A graduate of the Harvard Law School, he welcomes comments through www.LawHI.com.