Two Circumstances Reject Pseudonymity for Porn Copyright Infringement Defendants

From a June 23 resolution by Choose Joel Hillman (D.N.J.) in Strike 3 Holdings, LLC v. Doe:

That is one in all a number of instances filed by Plaintiff because the purported proprietor of copyrights in «grownup movement footage,» whereby Plaintiff alleges copyright infringement…. Plaintiff … alleg[es] that Defendant downloaded 24 copyrighted works with out authorization through BitTorrent protocol and distributed them to others. Plaintiff proceeded via discovery beneath a protecting order pursuant to Federal Rule of Civil Process 26(f), which allowed Plaintiff to use the John Doe pseudonym to the caption and to file sure paperwork with redactions. Now, on the shut of this case, the Events have filed a joint movement to seal sure supplies ….

The Court docket notes that whereas litigants have an curiosity in privateness, the general public additionally has a proper to acquire details about judicial proceedings…. «The get together searching for to seal any a part of a judicial document bears a heavy burden of displaying that disclosure of the document will ‘work a clearly outlined and severe harm to the get together searching for closure.'» Whereas this presumption of openness is rebuttable and never absolute, the harm have to be severe sufficient to beat issues associated to sustaining the general public’s confidence within the judicial system….

Events describe the idea for sealing as: the potential of Defendant’s current and potential employers discovering Defendant’s involvement on this case leading to hostile employment penalties, his repute changing into irreparably tarnished, and monetary losses. Whereas embarrassment is a consideration in favor of sealing, courts have denied motions to seal based mostly solely on embarrassing info or normal monetary information….

«Whereas stopping embarrassment could also be an element satisfying the ‘good trigger’ commonplace, an applicant for a protecting order whose chief concern is embarrassment should exhibit that the embarrassment will probably be significantly severe.» … «If mere embarrassment had been sufficient, numerous pleadings in addition to different judicial information could be stored from public view.» … On this case, the Events have solely alleged the potential of hurt if the identification of the Defendant is someway retrieved from courtroom information and disseminated by the press. The generality of this hurt just isn’t adequate to beat the presumption of entry to courtroom information….

On this matter, Plaintiff was allowed to proceed with preliminary discovery beneath a protecting order due to the chance of misidentification which will happen (in relation to the hyperlink which will or might not exist between a copyright infringer and the IP handle that’s used to carry out that infringement)…. These situations that warranted the non permanent restriction of public entry are not as compelling now that the Defendant has been recognized and is a part of this motion. {The Court docket notes that, whereas Defendant has been recognized by Plaintiff as the person allegedly liable for the copyright infringement at challenge, Defendant denies these allegations.} In balancing the potential harm to the Defendant if their info turns into publicly out there versus the general public curiosity in entry to judicial proceedings, the Court docket finds that the general public curiosity outweighs Defendant’s privateness curiosity….

Some courts have reactively negatively to infringement actions like this one introduced each on this District and elsewhere by this Plaintiff. One courtroom has even gone as far as to explain them as an extortion racket by a so-called copyright troll searching for to compel settlements via the specter of exposing in a public discussion board a Defendant’s downloading of pornographic supplies. This Court docket has taken a unique tack, permitting these instances to proceed beneath what it believes ought to be a non-controversial concept: this Court docket doesn’t have the authority to behave as a gatekeeper barring in any other case legitimate copyright house owners entry to the courts merely due to the distasteful content material of their mental property or the way it was acquired. Such coverage issues on the breadth of copyright safety ought to be left to the legislative department in a fashion in step with the Constitutional directive to offer a restricted monopoly to the artistic industries of society.

However this doesn’t imply that those that have criticized these instances haven’t raised authentic issues; issues highlighted by the movement now earlier than this Court docket. If this Court docket had been to seal the supplies figuring out the Defendant now upon a joint software of the events, after the companies of this Court docket had been used to establish a possible infringer and a settlement reached, it will not be unreasonable for somebody to have the impression that some type of extortion is certainly a part of the sport right here and even worse that the Court docket harbors and facilitates it.

To be clear, the Court docket doesn’t recommend that Plaintiff or its counsel have acted improperly, and definitely one can not fault the Defendant for wishing to stay nameless. However this Court docket ought to take no motion that lends itself to the impression that this Court docket fosters, promotes or shelters a dispute decision mechanism that pegs the worth for that anonymity as the quantity of damages sought by the Plaintiff. Plaintiff might deliver these actions and Defendants, if recognized, might defend them however the technique of this public taxpayer-funded courtroom ought to be as clear and open for all of the world to see because the legislation supplies. Accordingly, on this procedural posture, the Court docket will deny the Events’ joint movement to seal…

And an identical end result throughout the state line in Choose Gerald Pappert’s opinion the day earlier than, in Strike 3 Holdings, LLC v. Doe (E.D.Pa.):

As a result of the Defendant’s identification was unknown, the unique Criticism recognized him solely by his IP handle. After a third-party subpoena revealed the Defendant’s title and handle, the Court docket granted Strike 3’s movement to file an amended grievance beneath non permanent seal so the Defendant may assert his privateness pursuits after service. The case has purportedly settled, and Strike 3 now strikes on the Defendant’s behalf to take care of the pseudonym within the case caption and completely seal the unredacted paperwork containing his title, handle and different figuring out info. The Court docket denies the movement….

A celebration might proceed anonymously solely in «distinctive» instances. The potential for «embarrassment or financial hurt» just isn’t sufficient to justify anonymity. As an alternative, the get together searching for to litigate beneath a pseudonym should exhibit an inexpensive concern of extreme hurt. Even then, the Court docket should steadiness the litigant’s «curiosity and concern in opposition to the general public’s robust curiosity in an open litigation course of.» Anonymity is simply applicable if the previous outweighs the latter….

As an preliminary matter, the Defendant has not sufficiently alleged an inexpensive danger of extreme hurt. In his declaration, he contends he «could also be terminated from [his] present employment and/or lose future employment alternatives based mostly on the allegations of this case,» and that his «repute could be tarnished irreparably» if he had been related to «the alleged copyright infringement of grownup content material.» However «broad, obscure, and conclusory allegations of hurt … are … inadequate to beat the presumption of public entry.»

Defendant’s declaration presents no particulars to substantiate his declare that his job or future employment prospects could be severely harmed by his affiliation with the allegations within the Amended Criticism. He doesn’t say the place he works or why he believes his employer would terminate him for illegally downloading and distributing grownup pornography. The Defendant’s use of the double conjunction «and/or» to explain his fears of present and future job penalties highlights the speculative nature of each.

Nor has he defined why the reputational hurt he fears is so extreme his identification ought to stay a secret. Potential embarrassment just isn’t sufficient. Certainly, «[i]t is the uncommon civil lawsuit through which a defendant just isn’t accused of habits of which others might disapprove.»

Whereas courts have allowed litigants to proceed anonymously in instances «involving issues of a extremely delicate and private nature,» the Court docket just isn’t satisfied that defendants accused of illegally downloading grownup pornography are entitled to anonymity just because the allegations recommend they seen supplies of a sexual nature. Even in instances that contact on sexuality, there have to be an inexpensive concern of hurt above and past mere embarrassment.

«[T]he undeniable fact that … the case entails extremely private subject material … just isn’t in itself dispositive.» Even in such instances, «courts don’t merely presume extreme hurt.» As an alternative, the Court docket should distinguish between «mere embarrassment» and extra severe harms that may move from publicly disclosing details about a litigant’s sexuality or gender identification. Past a conclusory reference to a «tarnished» repute, Defendant alleges nothing of the type.  {Nor does the Amended Criticism go into gratuitous element in regards to the contents of the copyrighted works. Strike 3 describes them as «grownup movement footage» and names the manufacturers via which it distributes its content material, however deliberately omits the titles of the allegedly infringed works.} …

Even assuming the Defendant adequately alleged an inexpensive concern of extreme hurt, the hurt he articulated wouldn’t outweigh the general public’s curiosity in open litigation….

[P]roving the Defendant was the one downloading and distributing Strike 3’s copyrighted content material would seemingly be a key challenge had been the case litigated on the deserves…. [Strike 3] alleges that in the identical interval its content material was illegally downloaded and distributed, somebody on the similar IP handle torrented information associated to the Defendant’s publicly documented private {and professional} pursuits. As a result of the Defendant’s identification because the alleged infringer is central to the case, the fourth issue cuts in opposition to Strike 3’s request.

Furthermore, the sheer quantity of Strike 3 instances on this district illustrates the general public’s substantial curiosity in understanding «who’s utilizing their courts»—and to what ends. A latest article estimated that Strike 3 has filed three-fourths of the copyright infringement claims within the Jap District of Pennsylvania this yr. This phenomenon is newsworthy, and the Defendant himself claims to concern identification partially as a result of «many journalists and bloggers … write articles on BitTorrent copyright infringement issues.» However journalistic curiosity in these instances underscores quite than undermines the significance of open proceedings. Permitting each defendant in a Strike 3 case to stay nameless undermines the general public’s potential to know how its courts are getting used….

[Moreover, b]ecause it’s the Defendant who seeks to stay nameless, there may be little danger that forcing him to litigate beneath his personal title would deter «equally located litigants … from litigating claims that the general public wish to have litigated.» If something, refusing to rubber stamp motions to seal after early settlements might encourage extra defendants to litigate these claims on the deserves. In any case, «a plaintiff’s cussed refusal to litigate overtly by itself can not outweigh the general public’s curiosity in open trials.» …

That is much like the ends in Boy Racer, Inc. v. John Does 1–34, No. 11-cv-23035, 2012 WL 1535703, at *4 (S.D. Fla. Might 1, 2012); AF Holdings, LLC v. Does 1–162, No. 11-cv-23036, 2012 WL 488217, at *5 (S.D. Fla. Feb. 14, 2012); Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F. Supp. 2nd 444, 453 (D. Mass. 2011); Patrick Collins, Inc. v. Doe, No. 3, No. 1:12-cv-00844-TWP-MJD, 2013 WL 12291722, at *2 (S.D. Ind. Jan. 29, 2013); Patrick Collins, Inc. v. John Doe No. 3, No. 1:12-cv-00844-TWP, 2013 WL 364637, at *2 (S.D. Ind. Jan. 29, 2013); Patrick Collins, Inc. v. John Does 1–54, No. 11-cv1-1602-PHX-GMS, 2012 WL 911432, at *4 (D. Ariz. Mar. 19, 2012).

On the similar time, for instances reaching the alternative outcomes, and permitting pseudonymity, see Malibu Media, LLC v. Doe, No. 15-cv-2624-ER, 2015 WL 6116620, at *5 (S.D.N.Y. Oct. 16, 2015); Strike 3 Holdings, LLC v. Doe, No. 3:19-cv-508-J-34JRK, 2019 WL 5722173, at *1 (M.D. Fla. Nov. 5, 2019); Malibu Media, LLC v. Doe, No. 15-cv-1862-RJS, 2015 WL 4271825, at *3 (S.D.N.Y. July 14, 2015); Malibu Media, LLC v. Doe, No. 14-cv-20394, 2014 WL 12605559, at *1 (S.D. Fla. Apr. 18, 2014); Malibu Media, LLC v. Doe, No. 14-cv-20397, 2014 WL 12605560, at *1 (S.D. Fla. Apr. 14, 2014); Malibu Media, LLC v. Doe, No. 14-cv-60689, 2014 WL 12605554, at *1 (S.D. Fla. Apr. 11, 2014); Malibu Media, LLC v. Doe, No. 14-cv60680, 2014 WL 12605553, at *1 (S.D. Fla. Apr. 4, 2014); Malibu Media, LLC v. Doe, No. 13-cv-21579, 2013 WL 2950593, at *2 (S.D. Fla. June 14, 2013); Patrick Collins, Inc. v. Does, No. 3:12-cv-339-MCR-CJK, 2012 WL 12870254, at *4 (N.D. Fla. Oct. 16, 2012); Malibu Media, LLC v. John Does 1–5, No. 12-cv-2950-JPO, 2012 WL 2001968, at *2 (S.D.N.Y. June 1, 2012); see additionally Subsequent Section Distrib., Inc. v. Does 1–138, No. 11-cv9706-KBF, 2012 WL 691830, at *2 (S.D.N.Y. Mar. 1, 2012).

As in so many different contexts through which pseudonymity is sought, the instances are badly cut up.