Earlier this year, Grooveshark and parent company Escape Media Group (“Escape”) filed a subpoena in Los Angeles Superior Court against Digital Music News (“DMN”). The subpoena compelled the disclosure of an anonymous commenter’s identity. This petition could have “chilling effects” on the rights and obligations of Internet bloggers. An unfavorable ruling on DMN’s appeal would impose data preservation requirements on journalists resulting from third-party litigation. The ruling’s reach could extend past journalism by targeting companies that often keep client information for a short period of time, as outlined by the 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 (“UMG”) and Escape in UMG v. Escape Media. UMG claims that Escape, a host of a music-streaming site, engaged in copyright infringement. Their claim relies partly on an anonymous comment posted on DMN’s website last October. This comment, purportedly made by an Escape employee, “described institutionalized instructions for copyright infringement” at the company. If proved true, this claim could negate Escape’s ability to claim protection under the DMCA’s “safe harbor.”
In response to the subpoena, DMN has received the support of Paul Alan Levy. Mr. Levy is an attorney with the Public Citizen Litigation Group (“PCLG”). The PCLG is a public interest law firm that is a division of the consumer advocacy organization Public Citizen. Mr. Levy will now act as the lead litigator on this case. DMN relies on Mr. Levy’s experience litigating cases concerning the identification of anonymous Internet speakers, most notably, his amicus curiae brief in Dendrite v. Doe.
In a recent blog post, Mr. Levy argued that Escape Media’s basis for a subpoena was “transparently spurious” and enforcement of the subpoena would contravene both the First Amendment and California’s Shield Law for three reasons:
1. Anonymous posts are not admissible evidence in the underlying UMG lawsuit so proving the falsity of the anonymous post would not aid Escape’s defense against UMG.
2. Since Paul Resnikoff, DMN’s founder, is “famous for responding to his commenter’s posts and [using] their comments as a basis for stories”, he would not fall outside the scope of California Shield Law’s (“CSL”) protection. The CSL is “intended to protect a journalist from forced disclosure of anonymous sources accessed while compiling a story” but does not extend to anonymous comments posted subsequent to the publication of the story. Here, the ongoing interaction with commenters is consistent with them being “sources” in the usual sense of the term under the CSL.
3. Most importantly, DMN claims that Escape’s demands are moot because DMN’s servers only retain IP addresses related to commenters for a limited period of time. 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 DMN’s servers. After Mr. Levy submitted an affidavit highlighting the First Amendment and CSL defenses, Escape submitted anaffidavit showing that the anonymous post contained false statements. This was cause for concern for Superior Court Judge Richard Stone. He ordered the identity produced, but stayed the identification order pending appellate review. DMN was cautioned to preserve any identifying information in the meantime.
Addressing DMN’s protests over costs, Judge Stone required Escape to cover the financial costs of “preserving” the desired information. Escape’s other legal woes, coupled with the substantial cost of preserving the website proved “enormously expensive.” Escape moved to reduce the breadth of their search and limit the method of preservation to “virtual machine images.” This method is more straightforward and cost-effective than maintaining the website’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. If Paul Resnikoff didn’t make it a habit of engaging with commenters, the CSL might not have protected him. The cost of complying with Escape’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 Court’s determination of the appeal and whether DMN will have to turn over their records to Escape. Stay tuned for further developments in this legal saga.