Earlier this year, Grooveshark and parent company Escape Media Group (â€śEscapeâ€ť) filed a subpoena in Los Angeles Superior Court against Digital Music News (â€śDMNâ€ť). Â The subpoena compelled the disclosure of an anonymous commenterâ€™s identity. Â This petition could haveÂ â€śchilling effectsâ€ť on the rights and obligations of Internet bloggers.Â An unfavorable ruling on DMNâ€™s appeal would impose data preservation requirements on journalists resulting from third-party litigation. Â The rulingâ€™s reach could extend past journalism by targeting companies that often keep client information for a short period of time, as outlined by theÂ Electronic Frontier Foundation.
DMN, a blog that details the happenings of the music and tech industry, was subpoenaed as part of ongoing litigation between Universal Music Group (â€śUMGâ€ť) and Escape inÂ UMG v. Escape Media. Â UMG claims that Escape, a host of a music-streaming site, engaged in copyright infringement. Â Their claim relies partly on an anonymous comment posted on DMNâ€™s website last October. Â This comment, purportedly made by an Escape employee,Â â€śdescribed institutionalized instructions for copyright infringementâ€ť at the company.Â If proved true, this claim could negate Escapeâ€™s ability to claim protection under theÂ DMCAâ€™s â€śsafe harbor.â€ť
In response to the subpoena, DMN has received the support ofÂ Paul Alan Levy. Â Mr. Levy is an attorney with theÂ Public Citizen Litigation Group (â€śPCLGâ€ť). Â The PCLG is a public interest law firm that is a division of the consumer advocacy organization Public Citizen. Â Mr. Levy will now act as the lead litigator on this case.Â DMN relies on Mr. Levyâ€™s experience litigating cases concerning the identification of anonymous Internet speakers, most notably, his amicus curiae brief inÂ Dendrite v. Doe.
In a recentÂ blog post, Mr. Levy argued that Escape Mediaâ€™s basis for a subpoena was â€śtransparently spuriousâ€ť and enforcement of the subpoena would contravene both the First Amendment and Californiaâ€™s Shield Law for three reasons:
1. Anonymous posts areÂ not admissible evidence in the underlying UMG lawsuit so proving the falsity of the anonymous post would not aid Escapeâ€™s defense against UMG.
2. SinceÂ Paul Resnikoff, DMNâ€™s founder, isÂ â€śfamous for responding to his commenterâ€™s posts and [using] their comments as a basis for storiesâ€ť, he would not fall outside the scope of California Shield Lawâ€™s (â€śCSLâ€ť) protection. Â The CSL isÂ â€śintended to protect a journalist from forced disclosure of anonymous sources accessed while compiling a storyâ€ť but does not extend to anonymous comments posted subsequent to the publication of the story. Â Here, the ongoing interaction with commenters is consistent with them being â€śsourcesâ€ť in the usual sense of the term under the CSL.
3. Most importantly, DMN claims that Escapeâ€™s demands are moot because DMNâ€™s servers only retain IP addresses related to commenters for a limited period of time. Â Since the disclosure requests were made well after that limited term, the evidence has most likely been overwritten.
Despite these strong arguments, Escape believes they can find traces of evidence and wants forensic experts to have access to DMNâ€™s servers.Â After Mr. Levy submitted an affidavit highlighting the First Amendment and CSL defenses, Escape submitted anaffidavit showing that the anonymous post contained false statements.Â This was cause for concern for Superior Court Judge Richard Stone. Â HeÂ ordered the identity produced, but stayed the identification orderÂ pending appellate review. Â DMN was cautioned to preserve any identifying information in the meantime.
Addressing DMNâ€™sÂ protests over costs, Judge Stone required Escape to cover the financial costs of â€śpreservingâ€ť the desired information.Â Â Escapeâ€™s otherÂ legal woes, coupled with the substantial cost of preserving the website provedÂ â€śenormously expensive.â€ť Escape moved to reduce the breadth of their search and limit the method of preservation to â€śvirtual machine images.â€ťÂ This method is more straightforward and cost-effective than maintaining the websiteâ€™s operations while freezing blocks of data on the underlying server.
While this ruling does not establish precedent requiring bloggers to foot the bill for data preservation in third-party litigation, it creates a murky scenario where bloggers can be held liable for anonymous comments posted on their site.Â If Paul Resnikoff didnâ€™t make it a habit of engaging with commenters, the CSL might not have protected him.Â The cost of complying with Escapeâ€™s original requests would be substantial and the interference with business could cripple many startup blogs not fortunate enough to have Public Citizen in their corner.
We await the Courtâ€™s determination of the appeal and whether DMN will have to turn over their records to Escape.Â Stay tuned for further developments in this legal saga.