From a June 23 decision by Judge Noel Hillman (D.N.J.) in Strike 3 Holdings, LLC v. Doe:
This is one of several cases filed by Plaintiff as the purported owner of copyrights in "adult motion pictures," whereby Plaintiff alleges copyright infringement…. Plaintiff … alleg[es] that Defendant downloaded 24 copyrighted works without authorization via BitTorrent protocol and distributed them to others. Plaintiff proceeded through discovery under a protective order pursuant to Federal Rule of Civil Procedure 26(f), which allowed Plaintiff to apply the John Doe pseudonym to the caption and to file certain documents with redactions. Now, at the close of this case, the Parties have filed a joint motion to seal certain materials ….
The Court notes that while litigants have an interest in privacy, the public also has a right to obtain information about judicial proceedings…. "The party seeking to seal any part of a judicial record bears a heavy burden of showing that disclosure of the record will 'work a clearly defined and serious injury to the party seeking closure.'" While this presumption of openness is rebuttable and not absolute, the injury must be serious enough to overcome considerations related to maintaining the public's confidence in the judicial system….
Parties describe the basis for sealing as: the potential of Defendant's present and prospective employers discovering Defendant's involvement in this case resulting in adverse employment consequences, his reputation becoming irreparably tarnished, and financial losses. While embarrassment is a consideration in favor of sealing, courts have denied motions to seal based solely on embarrassing information or general financial records….
"While preventing embarrassment may be a factor satisfying the 'good cause' standard, an applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious." … "If mere embarrassment were enough, countless pleadings as well as other judicial records would be kept from public view." … In this case, the Parties have only alleged the possibility of harm if the identity of the Defendant is somehow retrieved from court records and disseminated by the press. The generality of this harm is not sufficient to overcome the presumption of access to court records….
In this matter, Plaintiff was allowed to proceed with initial discovery under a protective order because of the risk of misidentification that may occur (in relation to the link that may or may not exist between a copyright infringer and the IP address that is used to perform that infringement)…. Those conditions that warranted the temporary restriction of public access are no longer as compelling now that the Defendant has been identified and is part of this action. {The Court notes that, while Defendant has been identified by Plaintiff as the individual allegedly responsible for the copyright infringement at issue, Defendant denies these allegations.} In balancing the potential injury to the Defendant if their information becomes publicly available versus the public interest in access to judicial proceedings, the Court finds that the public interest outweighs Defendant's privacy interest….
Some courts have reactively negatively to infringement actions like this one brought both in this District and elsewhere by this Plaintiff. One court has even gone so far as to describe them as an extortion racket by a so-called copyright troll seeking to compel settlements through the threat of exposing in a public forum a Defendant's downloading of pornographic materials. This Court has taken a different tack, allowing these cases to proceed under what it believes should be a non-controversial theory: this Court does not have the authority to act as a gatekeeper barring otherwise valid copyright owners access to the courts simply because of the distasteful content of their intellectual property or how it was acquired. Such policy matters on the breadth of copyright protection should be left to the legislative branch in a manner consistent with the Constitutional directive to provide a limited monopoly to the creative industries of society.
But this does not mean that those who have criticized these cases have not raised legitimate concerns; concerns highlighted by the motion now before this Court. If this Court were to seal the materials identifying the Defendant now upon a joint application of the parties, after the services of this Court were used to identify a potential infringer and a settlement reached, it would not be unreasonable for someone to have the impression that some form of extortion is indeed part of the game here and even worse that the Court harbors and facilitates it.
To be clear, the Court does not suggest that Plaintiff or its counsel have acted improperly, and certainly one cannot fault the Defendant for wishing to remain anonymous. But this Court should take no action that lends itself to the impression that this Court fosters, promotes or shelters a dispute resolution mechanism that pegs the price for that anonymity as the amount of damages sought by the Plaintiff. Plaintiff may bring these actions and Defendants, if identified, may defend them but the process of this public taxpayer-funded court should be as transparent and open for all the world to see as the law provides. Accordingly, in this procedural posture, the Court will deny the Parties' joint motion to seal…
And a similar result across the state line in Judge Gerald Pappert's opinion the day before, in Strike 3 Holdings, LLC v. Doe (E.D.Pa.):
Because the Defendant's identity was unknown, the original Complaint identified him only by his IP address. After a third-party subpoena revealed the Defendant's name and address, the Court granted Strike 3's motion to file an amended complaint under temporary seal so the Defendant could assert his privacy interests after service. The case has purportedly settled, and Strike 3 now moves on the Defendant's behalf to maintain the pseudonym in the case caption and permanently seal the unredacted documents containing his name, address and other identifying information. The Court denies the motion….
A party may proceed anonymously only in "exceptional" cases. The potential for "embarrassment or economic harm" is not enough to justify anonymity. Instead, the party seeking to litigate under a pseudonym must demonstrate a reasonable fear of severe harm. Even then, the Court must balance the litigant's "interest and fear against the public's strong interest in an open litigation process." Anonymity is only appropriate if the former outweighs the latter….
As an initial matter, the Defendant has not sufficiently alleged a reasonable risk of severe harm. In his declaration, he contends he "may be terminated from [his] current employment and/or lose future employment opportunities based on the allegations of this case," and that his "reputation would be tarnished irreparably" if he were associated with "the alleged copyright infringement of adult content." But "broad, vague, and conclusory allegations of harm … are … insufficient to overcome the presumption of public access."
Defendant's declaration offers no details to substantiate his claim that his job or future employment prospects would be severely harmed by his association with the allegations in the Amended Complaint. He does not say where he works or why he believes his employer would terminate him for illegally downloading and distributing adult pornography. The Defendant's use of the double conjunction "and/or" to describe his fears of current and future job consequences highlights the speculative nature of both.
Nor has he explained why the reputational harm he fears is so severe his identity should remain a secret. Potential embarrassment is not enough. Indeed, "[i]t is the rare civil lawsuit in which a defendant is not accused of behavior of which others may disapprove."
While courts have allowed litigants to proceed anonymously in cases "involving matters of a highly sensitive and personal nature," the Court is not convinced that defendants accused of illegally downloading adult pornography are entitled to anonymity simply because the allegations suggest they viewed materials of a sexual nature. Even in cases that touch on sexuality, there must be a reasonable fear of harm above and beyond mere embarrassment.
"[T]he fact that … the case involves highly personal subject matter … is not in itself dispositive." Even in such cases, "courts do not simply presume severe harm." Instead, the Court must distinguish between "mere embarrassment" and more serious harms that might flow from publicly disclosing information about a litigant's sexuality or gender identity. Beyond a conclusory reference to a "tarnished" reputation, Defendant alleges nothing of the sort. {Nor does the Amended Complaint go into gratuitous detail about the contents of the copyrighted works. Strike 3 describes them as "adult motion pictures" and names the brands through which it distributes its content, but intentionally omits the titles of the allegedly infringed works.} …
Even assuming the Defendant adequately alleged a reasonable fear of severe harm, the harm he articulated would not outweigh the public's interest in open litigation….
[P]roving the Defendant was the one downloading and distributing Strike 3's copyrighted content would likely be a key issue were the case litigated on the merits…. [Strike 3] alleges that during the same period its content was illegally downloaded and distributed, someone at the same IP address torrented files related to the Defendant's publicly documented personal and professional interests. Because the Defendant's identity as the alleged infringer is central to the case, the fourth factor cuts against Strike 3's request.
Moreover, the sheer volume of Strike 3 cases in this district illustrates the public's substantial interest in understanding "who is using their courts"—and to what ends. A recent article estimated that Strike 3 has filed three-fourths of the copyright infringement claims in the Eastern District of Pennsylvania this year. This phenomenon is newsworthy, and the Defendant himself claims to fear identification in part because "many journalists and bloggers … write articles on BitTorrent copyright infringement matters." But journalistic interest in these cases underscores rather than undermines the importance of open proceedings. Allowing every defendant in a Strike 3 case to remain anonymous undermines the public's ability to understand how its courts are being used….
[Moreover, b]ecause it is the Defendant who seeks to remain anonymous, there is little risk that forcing him to litigate under his own name would deter "similarly situated litigants … from litigating claims that the public would like to have litigated." If anything, refusing to rubber stamp motions to seal after early settlements may encourage more defendants to litigate these claims on the merits. In any case, "a plaintiff's stubborn refusal to litigate openly by itself cannot outweigh the public's interest in open trials." …
This is similar to the results in Boy Racer, Inc. v. John Does 1–34, No. 11-cv-23035, 2012 WL 1535703, at *4 (S.D. Fla. May 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. 2d 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).
At the same time, for cases reaching the opposite results, and allowing 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 also Next Phase 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 other contexts in which pseudonymity is sought, the cases are badly split.
The post Two Cases Reject Pseudonymity for Porn Copyright Infringement Defendants appeared first on Reason.com.
