UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UMG RECORDINGS, INC., et al., ) ) Plaintiffs, )) v. ) No. 04-00093 (CKK) ) DOES 1-199, )) Defendants. ) MEMORANDUM OF AMICI CURIAE PUBLIC CITIZEN, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC FRONTIER FOUNDATION, AND AND ACLU OF THE NATIONAL CAPITOL AREA IN RESPONSE TO MOTION FOR EXPEDITED DISCOVERY

Comment A major portion of the brief below ; at this point I have no idea what exactly rules should apply to the permissibility (or not) of my or anyone's publishing material whose authorship or legal proprietorship does not belong with them.

Normally I would have considered the rights (no quotation marks) to a piece of literature, of its author or authors, not to have their production extensively copied without their own authorisation.

In this one case I do not consider such (othwise easily granted) rights of authors of the following but rather their own expressed principles -- which leave me in this particular instance with an open mind onto the question of copying their stuff extensively or not.

If the authors of the document or any person legitimately concerned would request of me not to publish major portion of the text I would naturally (I have no problem with not dispensing what does not belong to me) consider such a request and promptly remove the portions of the material which are not essential to my questions (and possible arguments).

So far as I have read on my own there is no First Amendment protection of anyone's "right" (quotation marks) to anonymous speech. This seems to have formed some portions of the brief in question.

I do not yet know if I should put my name to this.

. . . all amici here filed briefs urging that First Amendment principles be applied under Rule 45 to protect the right of anonymity. That plaintiffs here are now invoking Rule 45 and attempting to satisfy its standards represents an enormous step forward for which they deserve credit. However, as in the DMCA case, this �test case� will set standards for the application of Rule 45 for subpoenas to identify alleged copyright infringers, and it is important that Due Process and the First Amendment be scrupulously protected. Reluctantly, amici have concluded that there is serious reason to question whether plaintiffs� documentation for their discovery request meets those standards. Accordingly, we file this brief to describe to the Court the procedures that we believe should be followed, and the ways in which plaintiffs� showings to date fall short. 1. Balancing the Right to Anonymous Speech Against the Need for Disclosure. Plaintiffs are correct that it is commonplace for plaintiffs to be allowed discovery at the outset of a lawsuit to identify otherwise unknown persons alleged to have committed a legal wrong. But there is a significant difference between this case and the various cases plaintiffs cite on page 5 of their brief, where prisoners or arrestees sought to identify the prison or police officers who allegedly beat Before the DC Circuit ruled that the DMCA subpoena procedure was unavailable, the RIAA 1 had subpoenaed about 2500 filesharers, http://www.eff.org/IP/P2P/riaasubpoenas/, but only brought suit against or reached private settlements with approximately 600 persons. http://www.washingtonpost.com/wp-dyn/articles/A35281-2004Jan21.html?nav=hptop_ts. Judge Bates opined that First Amendment protection for file sharing defendants was minimal 2 because they are charged with copyright infringement and because they are not engaged in core -4- or otherwise mistreated them. The defendants here are accused of having engaged in wrongful but anonymous speech on the Internet, and because the First Amendment protects the right to speak anonymously, a subpoena for their names and addresses is subject to a qualified privilege. Just as in other cases where discovery seeks information that may be privileged, the Court must consider the privilege before authorizing discovery. The tension between this important qualified privilege and the interest of a plaintiff who has alleged wrongdoing in obtaining information needed to pursue litigation over alleged wrongdoing, has been considered by a number of federal and state courts over the past several years. These courts have wrestled with the fact that, at the outset of the litigation, the plaintiff has done no more than allege wrongdoing, and a privilege is generally not considered to be overcome by mere allegations. They have further recognized that a serious chilling effect on anonymous speech would result if Internet speakers knew they could be identified by persons who merely allege wrongdoing, without necessarily having any intention of carrying through with actual litigation. Indeed, plaintiffs� representatives have repeatedly told the press that they do not necessarily want to pursue litigation against all anonymous file sharers whose identities they obtain. Moreover, the anonymous 1 publication of musical works, like other forms of performance, is speech protected by the First Amendment. In re Verizon Internet Svces, 257 F. Supp.2d 244, 260 (D.D.C. 2003), rev�d on other grounds, 351 F.3d 1229 (D.C. Cir.).2 political speech. The first reason begs the question. The First Amendment does not protect libel or revelation of trade secrets or any of the variety of other wrongs that are commonly alleged in the lawsuits for which the courts have developed John Doe proceedings, any more than it protects copyright infringement. However, at the initial stage of the lawsuit, no court has determined that anyone has committed any such wrongs. The very point of the multi-part balancing test is to give the anonymous speaker an opportunity to contest the bona fides and merits of allegations of wrongdoing before the right of anonymity is permanently breached. The second reason is simply wrong � the Supreme Court�s decisions on anonymous speech emphasize the right of writers and other artists to publish creative works under pseudonyms. Moreover, if the defendants were simply individuals who displayed a carefully selected handful of files containing portions of songs � and the evidence goes no further than that as to most of the defendants � any fair use defense that they might mount could have First Amendment underpinnings inasmuch as the Supreme Court has held that �fair use� itself embodies First Amendment values. Eldred v. Ashcroft, 123 S.Ct. 769, 789-790 (2003); Harper & Row Pub. v. Nation Enterprises, 471 U.S. 539, 560 (1985). -5- In order to balance these interests, the courts have drawn by analogy from the balancing test that many courts, including the D.C. Circuit, have adopted in deciding whether to compel the disclosure of anonymous sources or donors. Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8 Cir. 1972); Baker v. F&F Investment, 470 F.2d 778, 783 (2d th Cir.1972). See also UAW v. National Right to Work, 590 F.2d 1139, 1152 (D.C. Cir.1978); Black Panther Party v. Smith, 661 F.2d 1243, 1266 (D.C. Cir. 1981). Accordingly, the courts that have considered this question have adopted a several-part balancing test to decide whether to compel the identification of an anonymous Internet speaker so that he may be served with process. This test was most fully articulated in Dendrite v. Doe, 775 A2d 756 (N.J.App. 2001), which remains the only appellate opinion in the country to face the question squarely. Dendrite requires the would-be plaintiff to (1) use the Internet to notify the accused of the pendency of the identification proceeding and to explain how to present a defense; (2) quote verbatim the statements allegedly actionable; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation, and (5) show the court that, on balance and in the particulars of the case, the -6- right to identify the speaker outweighs the First Amendment right of anonymity. So long as the quantum of evidence demanded of the plaintiff to meet this test does not exceed information that a plaintiff can reasonably obtain before undertaking discovery, this test fairly balances the interest in pursuing wrongdoing against the First Amendment right to speak anonymously. And, the final �balancing� part of the test enables courts to give extra protection to the speaker where, for example, the danger of retaliation is greater, or the speech at issue is core political speech about public officials, or to give extra weight to the plaintiff where the Court deems the speech at issue to be of only marginal value. Several other courts have similarly set forth requirements of notice, review of the complaint, and presentation of argument and evidence before an ISP will be compelled to identify an Internet speaker. For example, in Melvin v. Doe, 49 Pa.D.&C.4th 449 (2000), appeal quashed, 789 A.2d 696, 2001 Pa.Super. 330 (2001), appeal reinstated, 836 A.2d 42 (Pa. 2003), the trial court allowed an anonymous defendant to present evidence and seek summary judgment, ordering disclosure only after finding genuine issues of material fact requiring trial. In reversing the denial of the defendant�s interlocutory appeal, the Pennsylvania Supreme Court discussed at length the conflict between the right to speak anonymously and the plaintiff�s right to identify a potential defendant, and remanded for consideration of whether evidence of actual damage had to be presented before the right of anonymous speech could be disregarded. 836 A.2d at 47-50. Similarly, in La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super.), the court applied a balancing test and considered evidence that allegedly defamatory statements were false and caused injury before deciding to allow discovery concerning the identity of the speaker. In Columbia Ins. Co. v. Seescandy.com, 185 FRD 573 (N.D.Cal. 1999), The argument for a balancing test is more fully developed at http://www.citizen.org/ 3 documents/Melvin%202.pdf. -7- the court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus assuring them an opportunity to defend their anonymity, and also compelled the plaintiff to demonstrate that it had viable claims against such defendants. Id. at 579. And in Re Subpoena to America Online, 52 VaCir 26, 34 (Fairfax 2000), rev�d on other grounds, 542 SE2d 377 (Va 2001), the court required introduction of the allegedly actionable Internet posting, and required that the court be �satisfied by the pleadings or evidence supplied� that the subpoenaing party had a legitimate basis to contend that it was the victim of actionable conduct, �and . . . the subpoenaed identity information [must be] centrally needed to advance that claim. 3 In this case, of course, where the plaintiffs are respectable companies and their counsel are highly respected lawyers, it is difficult even to consider the possibility that the filing of the Complaint might not have been preceded by a meticulous investigation. On the other hand, it is not difficult for the plaintiffs to present solid evidence, including an affidavit by the individual who examined the files available for download from each defendant�s computer, listened to the files, verified that they were copyrighted songs, and checked to be sure that those copyrights were registered and are owned by the plaintiffs, and to list in the affidavit or in an affidavit attachment the songs that the Doe made available for download. The Whitehead affidavit in this case is long on social policy and very short on first person averments about the individual defendants in this case. Because this case will set a standard for all plaintiffs who seek to identify anonymous internet speakers based on claims of copyright infringement, including those who are less scrupulous and -8- ethical than these plaintiffs, the Court should not authorize a subpoena until such individualized evidence is presented about each Doe. 2. Personal Jurisdiction. One of the showings that plaintiffs have failed to make with respect to most of the defendants is that the Court has personal jurisdiction over each of the 199 defendants. The federal courts have generally applied a sliding scale analysis to determine whether a defendant who has posted information on the Internet that other persons can examine and download to computers located throughout the world, to ensure that persons using the Internet are not automatically subject to suit anywhere in the world. Under the sliding scale or �Zippo� analysis, named after Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997), defendants who passively post information on the Internet for others to examine and copy are not subject to personal jurisdiction based on their Internet postings, while defendants whose Internet sites are commercially �interactive,� in the sense that they use their sites to engage in business transactions, are subject to being sued in any state in which a substantial number of business transactions occur. Along this continuum, the greater the degree of commercial interactivity, the greater the liability for suit in a foreign jurisdiction. E.g., ALS Scan v. Digital Service Consultants, 293 F.3d 707 (4 Cir. 2002); th Neogen Corp. v. Neo Gen Screening, 282 F.3d 883 (6 Cir. 2002); Mink v. AAAA Development, 190 th F3d 333 (5 Cir. 1999). The D.C. Circuit has never expressly adopted this sliding scale analysis, th but it has relied on the concepts of passive and interactive Internet sites and on cases from other circuits that embrace the sliding scale. E.g., Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 512-513 (D.C. Cir. 2002); GTE New Media Svces. v. BellSouth Corp., 199 F.3d 1343, 1347-1350 (D.C.Cir. 2000). The defendants in this case do not have websites, but their computers are alleged to be -9- functioning in a manner comparable to a website � they have opened a section of their personal computers to the Internet in a manner that permits other persons with personal computers to obtain files stored on those computers and download them. There is no contention that the �music pirates� are charging for the information that is being made available. Therefore, defendants cannot be found at the �commercially interactive� end of the sliding scale, and the mere fact that the data on their computers can be accessed by others and downloaded in the District of Columbia is not a sufficient basis for subjecting them to suit here. Moreover, although the Complaint alleges and the Whitehead Affidavit avers that the IP numbers that each of the defendants is alleged to have used to post infringing material can be traced to an ISP, Verizon Internet Services, which �can be found� in DC, the attached affidavit of Wendy Seltzer reveals a very different picture. Verizon is not a small, local ISP whose customers are all clustered in Washington, DC; it is a national company that offers Internet service throughout the region and the nation. Ms. Seltzer demonstrates that, by employing a more meticulous analysis than the one described by Mr.Whitehead, the various IP numbers set forth in Complaint Exhibit A can be attributed to locations quite remote from Washington, D.C. It is very likely that customers who connect to the Internet through those remote locations reside in those areas, and, more to the point, not in the District of Columbia. As Ms. Seltzer�s affidavit shows, the technique and databases she used to obtain this information were readily accessible to plaintiffs before they filed this action. Indeed, at page 7 n4, plaintiffs implicitly acknowledge that the Court lacks personal jurisdiction over many defendants. Accordingly, on the face of the complaint, it appears that the great majority of the defendants are not D.C. residents. Of course, Verizon has address information for each of its customers, but In United States v. Alaska Pipeline, 1997 U.S. Dist. LEXIS 5221, *4 (D.D.C.), Judge Hogan 4 characterized prongs (1) and (2) as requirements in the alternative, and other cases have described the rule that way as well. However, that is not the natural reading of the language. Prongs (1) and (2) both modify the term �request for relief,� and are not stated in the alternative. Accordingly, the literal meaning of the language would require the request for relief to satisfy both criteria, just as the phrase �tall mountain covered with glaciers� would not properly describe Mount Fuji, because although it is tall it has no glaciers. -10- there is no basis for this Court to compel Verizon to identify defendants over whom the Court does not have personal jurisdiction. Moreover, it would be a very substantial hardship for individual defendants residing as far away as Seattle or Honolulu, who wish to protect their right to communicate anonymously on the Internet, to hire counsel to defend their rights in Washington, D.C. Accordingly, if any subpoenas are to be issued to Verizon, they should only require Verizon to specify the states in which each defendant resides, so that Verizon can refile this action against such individuals in the proper jurisdictions. 3. Joinder. There is also substantial reason to question whether plaintiffs have properly joined all 199 defendants in a single action. Rule 20 permits multiple defendants to be joined in a single lawsuit when three conditions are met: (1) the right to relief must be �asserted against them jointly, severally or in the alternative�; (2) the claim must �aris[e] out of the same transaction, occurrence, or series of transactions or occurrences�; and (3) there must be a common question of fact or law common to all the defendants. In this case, there is no claim for relief jointly or severally or in the alternative. Moreover, there is no common transaction or occurrence, and we question whether there is the proper �series of transactions or occurrences.� The individuals sued have no connection with each other: they are claimed to have shared different music using different filesharing software at different places throughout the country.4 The cases require that, for defendants to be joined in the same lawsuit, they must be related Accord Pergo, Inc. v. Alloc, Inc., 262 F.Supp.2d 122 (S.D.N.Y. 2003) (denying joinder 5 when only connection between defendants is that they may have infringed the same patent); Tele-Media Co. of Western CT v. Antidormi, 179 F.R.D. 75 (D.Conn. 1998) (denying joinder of 100 defendants who each used similar technology to infringe plaintiff's pay-per-view programming because defendants did not act in concert); Movie Systems v. Abel, 99 F.R.D. 129 (D. Minn. 1983) (denying joinder of 1,798 defendants who had allegedly all infringed the same television distributor's broadcasts because, "although there were common practices and perhaps common questions of law," the independent defendants had not acted jointly). -11- to each other. Thus, for example, in United States v. Alaska Pipeline, 1997 U.S. Dist. LEXIS 5221, *4 (D.D.C.), Judge Hogan refused to allow a False Claims Act case to proceed against 66 different energy companies who had allegedly underrepresented the volume and BTU content of natural gas that they harvested and carried from federal and Indian lands, and thereby had underpaid for that gas. �[P]laintiff cannot join defendants who simply engaged in similar types of behavior, but who are otherwise unrelated; some allegations of concerted action between the defendants is required.� Judge Hogan relied on Nassau Cy. Ass�n of Ins. Agents v. Aetna Life & Cas., 497 F.2d 1151 (2d Cir. 1974), which refused to join 164 insurance companies accused of antitrust violations because there was �no allegation of conspiracy or other concert of action,� and Cohen v. DC National Bank, 59 F.R.D. 84 (D.D.C. 1972), which �refused to join 11 banks allegedly engaged in usury because actions were independent of one another.� By contrast, in In re Vitamins Antitrust Litig., 2000 WL 1475705, *18 (D.D.C.), Judge Hogan allowed joinder of several vitamin companies in a single antitrust action because plaintiffs alleged a �single global conspiracy involving all named defendants.� 5 Our concern that corners might be cut if hundreds of otherwise unrelated defendants are joined in a single action is heightened by the manner in which plaintiffs have sought leave to pursue discovery in this case. Plaintiffs� affidavit attaches hundreds of pages concerning the music files We might well question the need for purposes of obtaining discovery to present hundreds 6 of pages of exhibits about each defendant in order to justify discovery into the identify of each one. No doubt it makes a more compelling press release, however. The cases are collected at the web page http://www.directvdefense.org/files/ (see caption 7 �Severance�). -12- made available by three of the 199 defendants and tells the Court that although comparable evidence could be made available with respect to each of the other defendants, it would be too burdensome to do so. However, although the courts exist to implement broad and important public policies, they do so by meting out individual justice. To be sure, it is more convenient to present evidence about only a few of the accused before obtaining discovery about all of them, but if it is important enough to sue all of them, it should be important enough to present sufficient evidence to justify discovery identifying each one of them.6 In a highly analogous context, several district courts have refused to allow a company that distributed television programs through satellite systems to sue hundreds of otherwise unrelated individuals for using �pirate access boxes� to obtain satellite signals without paying for them.7 Stealing satellite signals is at least as reprehensible as making music files available for download, but these district judges refused to be stampeded by claims of convenience and need for immediate action into allowing all defendants to be joined in one action for the administration of mass justice. The same principle applies to the accused copyright infringers in this case. 4. Procedure for Subpoenas. Even assuming that the Court concludes that it should allow some or all of the discovery requested by plaintiffs, we have a modest suggestion about the terms of that discovery to better ensure that the Does have a realistic opportunity to object if they choose to do so. We applaud plaintiffs for recognizing that Verizon should be allowed sufficient time to -13- respond to the subpoenas to allow Verizon to notify its subscribers that their identifies are at issue, so that, if they choose, the Does can offer evidence or argument in defense of their anonymity under the Dendrite standard. Pl. Mem. at 7 n4. We question, however, whether fifteen days from the date of the subpoena is a sufficient amount of time to allow each defendant to receive the requisite notice from Verizon, and to allow that defendant, particularly a defendant who may be located thousands of miles from D.C., to obtain an attorney who is licensed to practice in this District, and to allow that attorney to prepare a motion to quash if one can be justified. Amici suggest that the Court address this issue in its order, by directing Verizon to provide notice within seven days of its receipt of the subpoena to each person whom its records reflect as having used the indicated IP addresses at the indicated times, to allow the defendants fourteen days from the time notice was received to file a motion to quash, and to refrain from disclosure pending the disposition of any motion to quash. In urging such additional time, we are not insensitive to plaintiffs� concerns about the need for immediate action lest information contained in Verizon�s electronic records, showing which of its customers used which IP numbers at which times. We have suggested to plaintiffs� counsel that they ask Verizon for a commitment to preserve that information pending this Court�s ruling on whether it may pursue discovery, and, if a subpoena is served, pending disposition of any timely filed motion to quash, and we have spoken with a Verizon representative who indicated that the server information does not face imminent destruction. We urge the Court to address that issue in its order. On the other hand, according to the dates listed in Exhibit A, plaintiffs here are suing over material that it found on the Internet as early as June 2003 (Does Nos. 8 and 158), and none of the material was seen after December 6, 2003 (Does Nos. 46, 48, 53, 65, 73, 77, 121, and 139). Plaintiffs have not exactly sued expeditiously, and if they must wait a few more weeks to obtain the -14- necessary information, either pending a ruling or pending litigation in the proper jurisdictions, to ensure that the First Amendment and Due Process rights of the alleged infringers are respected, we do not expect that plaintiffs� world will end. CONCLUSION The motion for expedited discovery should be considered and resolved in accordance with the principles set forth above. Respectfully submitted, Paul Alan Levy (DC Bar No. 946400) Charlotte Garden Public Citizen Litigation Group 1600 - 20 Street, N.W. th Washington, D.C. 20009 (202) 588-1000 Attorneys for Public Citizen Cindy A. Cohn Wendy Seltzer 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneys for Electronic Frontier Foundation Christopher A. Hansen Aden J. Fine 18 floor th 125 Broad Street New York, New York 100004 February 2, 2004 Attorneys for American Civil Liberties Union