On July 26, 2004, judge Denny Chin of the U.S. District Court for the Southern District of New York issued an opinion in the RIAA case filed by 17 record companies against 40 unidentified Doe defendan

On July 26, 2004, judge Denny Chin of the U.S. District Court for the Southern District of New York issued an opinion in the RIAA case filed by 17 record companies against 40 unidentified Doe defendants for copyright infringement. The opinion -- in which the court ruled on motions to quash plaintiffs' subpoena duces tecum served upon Cablevision that sought the identities of the Internet service provider's subscribers -- discusses First Amendment and privacy issues.

The motions raise two First Amendment issues: (1) whether a person who uses the Internet to download or distribute copyrighted music without permission engages in the exercise of speech; and (2) if so, whether the First Amendment protects such person's identity from disclosure.

The court concluded that a person engages in the exercise of speech by downloading or distributing copyrighted music, "albeit to a limited extent only." In addition, "such a person's identity is not protected from disclosure by the First Amendment."

The court writes its opinion fairly clearly and succinctly. It analyzes applicable law and application of First Amendment rights, considering the following issues:

Anonymous Speech: The court initially recognizes that the First Amendment protects anonymous speech. The three U.S. Supreme Court decisions cited in the court's opinion were rendered between 1960 and 1999 and involve political expression or civil rights.

In the earliest case, Talley v. California(1960) 362 U.S. 60, the court invalidated a Los Angeles city ordinance prohibiting distribution -- in any place and under any circumstance -- of any handbill that did not include the name and address of the person who prepared, distributed or sponsored it. If the "person" was a fictitious person or club, the handbill must include the true names and addresses of the owners, managers or agents of the sponsor.

In reversing Talley's conviction for distributing handbills that didn't identify owners or agents of the organization, the court emphasized the importance of anonymity. "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all ... It is plain that anonymity has sometimes been assumed for the most constructive purposes."

Speech on the Internet:The court cites several cases to support its conclusion that the First Amendment protects speech on the Internet.

Most notable is Reno v. ACLA (1997) 521 U.S. 844, in which the U.S. Supreme Court explored the constitutionality of the Communications Decency Act of 1996. The Reno court compared Internet users to potential handbill distributors, stating: "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer."

Limited Protection for Anonymous Speech on the Internet: Noting that all speech, whether anonymous or identifiable, does not have absolute protection, the court cites cases rejecting First Amendment protection for copyright infringement.

For instance, the U.S. Supreme Court in Harper & Row Publishers, Inc. v. Nation Enters. (1985) 471 U.S. 539, rejected the fair use defense raised by The Nation magazine for its unauthorized publication of portions of former president Ford's unpublished memoirs. That court also rejected defendant's attempt to, in effect, extend the First Amendment's "public figure" exception to the fair use doctrine.

Civil Subpoenas: Next, the court explores First Amendment implications of civil subpoena power to obtain Internet subscribers' identities.

It notes that courts permitted discovery of subscriber information in three cases, two of which were based on violation of the Digital Millennium Copyright Act (DMCA), and the other based on defamatory statements and disclosure of confidential insider information made online. Three courts denied production of subscriber information "in different circumstances" involving a shareholder derivative suit, a subpoena seeking information about subscribers affiliated with an organization and a defamation case where the subpoenaing party failed to establish a prima facie defamation claim.

P2P Use and Speech: The court held that a person who engages in P2P file sharing isn't engaging in "true expression," such as chat-room participation or e-mail communications; the person isn't seeking to "communicate a thought or express an idea." The court recognized the argument, however, that a person sharing files is making a statement by his or her actions and, alternatively, may be expressing himself or herself through the music selected. Therefore, this type of speech is entitled to some protection.

Disclosing Identities: Five factors were weighed to determine the need for disclosing identities: (1) whether plaintiffs presented a concrete showing of a prima facie claim of actionable harm; (2) whether the discovery request was specific; (3) the absence of alternative means to obtain the subpoenaed information; (4) a central need for the subpoenaed information to advance the claim; and (5) the party's expectation of privacy.

The court concluded that all five factors supported disclosure of the identities.

First, plaintiffs submitted evidence of ownership or exclusive rights of a valid copyright and copying of the original copyrighted work.

Second, the subpoenas included specific times and dates when particular Cablevision subscribers downloaded specific songs.

Third, plaintiffs established their efforts to locate the Doe defendants and their inability to obtain the information by other means.

Fourth, they established the importance of the identities to advance their copyright claims.

Finally, Cablevision's terms of service, to which its subscribers must agree, prohibited transmission or distribution of any material in violation of laws or regulations, and stated that Cablevision had the right to disclose any information as necessary to satisfy any law, regulation or other governmental request.

Therefore, the court concluded that defendants' expectations to privacy were minimal. The motions to quash were denied.

Case: Sony Music Entertainment Inc., et al., v. DOES 1-40, Case No. 04 CIV. 473 (DC), F.Supp.2d cite not yet available
Date: July 26, 2004
Court: U.S. District Court, Southern District of New York, Chin, District Judge
Counsel for Plaintiffs: Cowan, Liebowitz & Latman P.C., by J. Christopher Jensen and Jason David Sanders, New York; Jenner Block LLP, by Thomas J. Perrelli, Washington, D.C.
Counsel for Doe Defendant: Louis P. Pittocco, Greenwich, Conn.
Counsel for Amici Curiae: Electronic Frontier Foundation, by Wendy Seltzer and Cindy A. Cohn, San Francisco; Public Citizen by Paul Alan Levy and Charlotte Garden, Washington, D.C.; American Civil Liberties Union, by Christopher A. Hansen and Aden J. Fine, New York