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Sixth Circuit Creates 'Presumption' of Unmasking Copyright Infringers

In what it called an "issue of first impression," the Sixth Circuit yesterday, by a 2-1 vote, created a "presumption in favor of unmasking" adjudicated copyright infringers -- and other "anonymous defendants".

From the majority opinion:

In this issue of first impression, we hold that like the general presumption of open judicial records, there is also a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff. When deciding whether to unmask an anonymous defendant, courts must consider both the public interest in open records and the plaintiff's need to learn the anonymous defendant's identity in order to enforce its remedy. The greater a plaintiff's or the public's interest in unmasking a losing Doe defendant's identity, the more difficult it will be for the Doe defendant to overcome the presumption and remain anonymous. Further, where a Doe defendant's speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.

The dissenting judge rejected the majority's "balancing test" and would have gone further:

Doe's identity was entitled to limited protection at the discovery stage because, at that point, it was not clear whether he had committed any wrong, and disclosure of his identity would cause irreparable harm in the event it was determined that he was innocent of copyright infringement and properly engaging in protected anonymous speech. For this reason, the Art of Living balancing test was properly applied during the discovery phase. But it is a temporal and temporary measure, created to facilitate discovery and to protect innocent defendants. It should not be extended to shield an adjudicated copyright infringer from the ramifications of the judgment against him. Having rejected Doe's fair use and copyright misuse defenses, having determined that Doe was liable for copyright infringement, and having ordered injunctive relief, there was no legal basis for entering a judgment that did not identify Doe. Thus, the district court erred in reapplying the Art of Living test after it had determined that Doe (by his own admission) was liable for copyright infringement and placing the burden on Team to establish why unmasking Doe's identity was necessary.
* * * * *
The majority's concern here is like that of an overprotective parent. Doe should not be shielded from the consequences of his own actions, since he could have preserved his right to speak freely and anonymously by simply refraining from copyright infringement

The opinion is available here:signature.pdf

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