December 01, 2011
Spiritual Group's Attempt to Unmask Online Critics Goes South--Art of Living Foundation v. Does
[Post by Venkat Balasubramani]
Art of Living Foundation v. Does, 10-cv-05022-LHK (N.D. Ca.; Nov. 9, 2011)
Art of Living Foundation is an organization based in India that is dedicated to teaching the spiritual lessons of “His Holiness Ravi Shankar.” Defendants are disgruntled former “student-teachers and students” of plaintiff who want to bring to light their view that AOLF is a “manipulative and abusive cult.” Defendants posted blogs under the pseudonyms “Skywalker” and “Klim.”
AOLF sued, alleging various claims including defamation, misappropriation of trade secrets, copyright infringement and trade libel. AOLF also alleged that defendants published AOLF’s copyrighted “Breathe Sound Water Manual.” AOLF sought leave to conduct expedited discovery. This request was approved and AOLF issued subpoenas to Google and Automattic. Before Google and Auttomatic complied with the subpoenas, defendants appeared through counsel and moved to dismiss AOLF’s defamation claim, strike its trade secrets claim, and also moved to quash the discovery. Skywalker acknowledged that he published the manual, but said that he posted this solely as part of his larger campaign to bring awareness to his views about AOLF.
While the motion to quash was pending, the court granted defendants’ request to dismiss the defamation claim, and struck the trade secrets claim. AOLF filed an amended complaint limiting its claims to copyright infringement and misappropriation of trade secrets. Magistrate Judge Beller granted the motion to quash as to Klim but denied it as to Skywalker, relying largely on the fact that a prima facie claim of copyright infringement is sufficient to overcome the right to anonymity. Judge Koh, reviewing Magistrate Judge Beller’s order, finds that AOLF failed to overcome Skywalker’s right to remain anonymous and quashes the subpoena as to Skywalker.
In a characteristically excellent order, Judge Koh canvasses the various standards courts apply in resolving anonymity issues. Some courts have required plaintiffs to make a prima facie showing before ordering disclosure, while others have demanded admissible evidence establishing each element of a claim. The Ninth Circuit recently held that in resolving the disclosure issue, courts should keep in mind the nature of the speech (e.g., purely commercial versus purely political) as well as the potential chilling effect of ordering disclosure (In re Anynomous Online Speakers). Finally, and most troubling for the defendants, a widely cited 2004 decision from the Southern District of New York found that a prima facie allegation of copyright infringement entitles the plaintiff to identify doe defendants (Sony Music v. Does).
Defendant raised a fair use argument, but the court does not rely on the possibility of non-infringement in resolving the disclosure issue. The court notes that “evidence of copyright infringement does not automatically remove the speech at issue from the scope of the First Amendment.”
The court employs a balancing test where it weighs the harm to plaintiff and defendants. Disclosure of Skywalker’s identity would have a chilling effect on other bloggers, and this weighed heavily in favor of defendants. With respect to harm to the plaintiff from quashing the subpoena, the court finds that AOLF would not suffer a comparable harm. AOLF could proceed in the litigation without knowing Skywalker's identity—Skywalker had responded to written discovery, and if necessary, AOLF’s counsel could even conduct a deposition via telephone (or alternatively, Skywalker’s identity could be revealed on an attorneys’ eyes only basis). Ultimately, AOLF was unable to make a compelling argument that it needed to discover Skywalker’s identity at this point in the litigation. It raised a weak argument that it needed to find out the revenues generated from Skywalker’s blog but the court notes that this information could be gleaned through other sources, such as Google and Automattic.
This is a nuanced result. The court recognizes that the copyright claim is not particularly strong and there is a good chance, this is the end of the road for Art of Living Foundation. The earlier dismissal of its defamation claim (and accompanying liability for attorney's fees) is a serious blow, but the court's rejection of its request to unmask Skywalker deprives AOLF of what it was looking to get out of this lawsuit--early identification of a pseudonymous blogger. On the merits of his copyright claim, Skywalker may win on his claim for fair use or successfully argue that the damages are minimal at best. (See generally, the Righthaven debacle.)
The overall takeaway is that if you as a blogger face a claim for garden-variety copyright infringement, this type of a ruling shouldn't give you much hope. Courts will readily cite to Sony Music v. Does and order compliance with a subpoena seeking your identification. If, on the other hand, a plaintiff is using a weak copyright claim to get at you for bad-mouthing the plaintiff, a court may see it for what it is, and deny the requested discovery. Of course, this depends on your luck of the draw and requires you to be in front of a thoughtful judge and have good representation. (The ACLU, EFF, and Public Citizen weighed in as amici, which didn't hurt.) It also requires that service providers don't jump the gun when responding to subpoenas seeking identification. I'm sure on a daily basis, numerous posters and bloggers are unmasked because the circumstances are different from those in this case. Additionally, "garden-variety" copyright infringement unmaskings never get to court at all; service providers routinely make disclosures under section 512(h) without the alleged infringer even knowing it.
Added: Art of Living approached me and asked if I would add a link to an explanatory letter from them explaining their motivations in bringing the lawsuit. I've uploaded it to Scribd here.
Public Citizen: Federal Judge Protects Anonymity of Blogger Despite the Allegedly Infringing Posting of a Copyrighted Teaching Manual
Techdirt: Courts Can't Ignore Free Speech Concerns Just Because Someone Claims Copyright Infringement
Wendy Davis: Court Rejects Bid To Unmask "Art of Living" Critic
RCFP: Federal judge preserves blogger's anonymity