Electronic Frontier Foundation

“ Once an online user’s anonymity and privacy have been eviscerated, they cannot be repaired or the user made whole. Due process dictates that the accused infringer should not be forced to undergo the harm of losing his or her anonymity unless and until the subpoenaing party has submitted some competent evidence as to the viability of their claims—including the ability for the claims to survive self-evident defenses such as fair use. ”

“ Because Landmark has failed to submit competent evidence supporting the viability of its copyright claims, there is no need for the court to consider the remaining factors of the First Amendment balancing test. That said, those factors also weigh against Landmark. There is nothing in the record to suggest that Landmark explored using alternative means to identify potential infringers or even attempted, e.g., via comments submitted to the video hosts, to notify Doe of the risk of having his or her identity subpoenaed. ”

“ As an initial matter, the Documentary is not a substitute for the Landmark Forum course, or for any manual intended for Forum instructors. Plainly, an hour-long Documentary that sharply criticizes a three-day interactive workshop cannot be said to supersede that workshop. Moreover, courts routinely recognize that critical transformative works are not market substitutes for the work being criticized. ”

“ If the first component of the test is met, the court should then “assess and compare the magnitude of the harms that would be caused to the competing interests” and enforce the subpoena only if its issuance “would cause relatively little harm to the defendant’s First Amendment and privacy rights and . . . is necessary to enable plaintiff to protect against or remedy serious wrongs.” Id. at 976; see also, e.g., Columbia, 185 F.R.D. at 578-79 (requiring demonstration of viable claims and good faith effort at notice before anonymity could be pierced) . ”

“ The strength of that demonstration depends upon a variety of factors. For example, in a defamation and trademark action (among other claims) , this Court held that the protected interest in speaking anonymously requires that a plaintiff seeking to pierce a Doe defendant’s anonymity must first adduce competent evidence that “if unrebutted, tend [s] to support a finding of each fact that is essential to a given cause of action.” ”

“ Decisions in copyright infringement actions against Doe defendants are no exception to this trend, nor should they be. Allegations of copyright infringement are no more inherently reliable than allegations of trademark infringement or defamation. Thus, in Sony Entertainment v. Does, a copyright case, the court weighed five factors prior to enforcing a Rule 45 subpoena against the anonymous defendants: “ (1) [the existence of] a concrete showing of a prima facie claim of actionable harm ... (2) specificity of the discovery request ... ”

“ Thus, transformative uses are entitled to particularly broad protection; according to the Supreme Court, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, supra, at 569. Here, the Documentary is plainly transformative and Doe’s posting of it is clearly noncommercial.
The Documentary use of material from Landmark’s manual is clearly transformative. The Documentary does not seek to replicate or supercede the course, but rather to comment upon it. ”

“ Mattel, supra, at 806 (“the public benefit in allowing . . . social criticism to flourish is great.”) ; see also Los Angeles Times v. Free Republic, 2000 WL 1863566 (C.D. Cal. 2000) (assessing a website’s role in fostering debate and discussions on topical news when determining public benefit) .
Indeed, the only market harm that might be caused by the use is that viewers of the Documentary, thus informed of the potential problems with the workshop, might be less likely to sign up for Landmark’s courses. That is not a harm copyright law can or should redress. ”

“ The Qualified Privilege Does Not Impede Viable Claims But Instead Limits Abuse of the Discovery Process.
A qualified privilege to remain anonymous is not an absolute privilege. Litigants have a right to seek information necessary to pursue reasonable and meritorious litigation. Section 512 (h) is designed to provide a limited ability to seek pre-lawsuit information, when necessary for meritorious copyright lawsuits. ”

“ See Campbell, supra, at 578. Because it creates new information and insights, transformative use “is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.” ”

“ CV 06-80304 MISC, Dkt. 1. However, the Declaration was apparently accompanied by a copy of a cease and desist letter referring to the “Landmark forum leaders manual” noted above. Pursuant to its usual practice, Google notified Doe of the subpoena request. The user advised Google, through counsel, of the user’s intent to move to quash the subpoena. Google has declined to respond to the subpoena pending resolution of the motion. ”