Sixth Circuit Implicitly Embraces Dendrite Balancing Standard for Protecting Anonymous Speech

by Paul Alan Levy

In a decision issued on Tuesday in Signature Management Team v. Doe, the Court of Appeals for the Sixth Circuit implicitly adopted the majority rule followed in the state courts that have addressed the issue, holding that a plaintiff seeking to identify an anonymous defendant in order to pursue litigation over claims that the defendant’s anonymous speech violated the plaintiff’s rights must not only make a prima facie showing that the claims have evidentiary and legal merit, but must satisfy the court that the plaintiff’s need for identifying information outweighs the defendant’s First Amendment interests in keeping her speech anonymous. That basic holding is the good news.

Pursuant to that analysis, the majority opinion vacated a decision upholding the Doe defendant’s anonymity and remanded for reconsideration in light of various factors spelled out in the court’s opinion. The context for the anonymity ruling was an unusual one, in that the judge had issued a judgment determining that the anonymous blogger in the case had infringed the plaintiff’s copyright. The court thus held that, in conducting the needed the equitable balance between the First Amendment right to speak anonymously and the interests favoring unmasking, the trial court needed to take into account the general presumption of public access to judicial records.


The case involves the anonymous author of a blog, a former participant in Amway’s multilevel marketing operation, whose “Amthrax” blog expresses skepticism about the entire industry of multilevel marketing schemes. In recent years, the blog has focused a fair amount of attention on a multilevel marketing company called Signature Management Team.

In the course of discussing Signature Management’s scheme, Amthrax posted a copy of an instructional manual that is sold  on Amazon for $2; later, after removing his own posting of the document, the blogger provided a link to the document on a separate web site. Although the blogger argued that his purpose on posting the manual was to show the basis for his discussion of certain parts of the document, it was the entirety of a document containing hundreds of pages that the blogger was posting (or to which he was linking). Signature Management thereupon acquired the copyright in the document and registered that copyright; it invoked the DMCA to demand both takedown of the manual and identification of the blogger through a section 512(h) subpoena to Automattic, the host of the Amthrax blog. The blogger removed the copy of the manual from his own web site and retained as counsel Joshua Koltun, whose track record in litigation on behalf of anonymous bloggers has shown remarkable creativity (and success). Under Koltun’s guidance, the blogger removed from his web site the hyperlink to other copies of the work and destroyed all existing copies of the manual that remained in his possession.

The blogger opposed the subpoena in federal court in San Francisco, from which the DMCA subpoena had been issued, but the trial court enforced it, 741 F. Supp.2d 1145, deciding that TEAM had made out a prima facie case of copyright infringement and that the blogger’s First Amendment interests would be sufficiently protected by an order limiting TEAM’s use of the subpoenaed data to protect its copyright interests. It turned out, however, that Automattic did not have sufficient identifying information for TEAM to learn the blogger’s actual name and contact information.

The Litigation of the Michigan Case

Signature Management then brought suit in the Eastern District of Michigan (where it is located), against the blogger as a Doe defendant. It alleged copyright infringement, although because it had not registered the copyright for four years after initial publication, it did not seek an award of statutory damages; indeed, it did not seek actual damages either. It sought only equitable relief, including a judgment of infringement, as well as injunctive relief commanding destruction of all copies in the Doe’s possession and forbidding future infringement of the copyright. Avoiding possible litigation of a motion for early discovery of the Doe’s identifying information, and following the approach he had successfully employed in Art of Living v Doe to protect the identity of a different blogger who had been sued for copyright infringement by a religious cult whom that blogger had criticized, Koltun sent plaintiff a waiver of service.

Doe moved for summary judgment based on defenses of fair use and copyright misuse. Signature filed a Rule 56(d) affidavit, arguing that summary judgment should not be granted until after Doe had been identified and had both answered written discovery and been deposed orally. The Doe opposed discovery seeking to identify him, submitting two powerful affidavits, one signed anonymously by the Doe and one by a different, formerly anonymous blogger who described what had happened to HIM after he was identified as the author of criticisms of multilevel marketing schemes. Apparently, people at the lower levels of multi-level marketing schemes found his criticism so threatening to their livelihoods that they publicized the blogger's home address and other contact information and threatened physical harm to the blogger and his family. The contents of some of the communications sent to this blogger are frankly scary. The Doe’s argument was that, in addition to his theoretical First Amendment right to maintain his anonymity as a blogger, he had very realistic concerns about being identified as the author of the Amthrax blog. Indeed the Doe argued, given the fact that he had not only taken down the infringing work shortly after learning of plaintiff, it appeared that unmasking was the only genuine purpose for the litigation.

These concerns about retaliation resonate with me because I have had clients in the online space who have received similar threats. For example, in a number of cases a few years ago, we successfully represented Julia Forte, at the time the co-owner of 800Notes and other online forums for consumer comment, against lawsuits over the inclusion of criticism on those forums (for example, suits brought by a fraudulent videomaking company and a financial sales operation). After Forte built up a track record of success in such suits, dissatisfied targets of criticism gave up on suing her and instead figured out what her married name was and where she lived; they then threatened to come picket her house and follow her children; one person went so far as to make threatening phone calls to her former husband, threatening to kill her. (As I was preparing this article, Forte told me that even though she had been out of the consumer comment hosting business for several years now, she still gets hate calls from people who apparently think that abusive behavior is the way to get criticisms taken off line from the site inwhose management she was formerly involved). So I appreciate that bloggers can have a very real need to maintain their anonymity.

Signature Management, however, argued that it needed to identify the Doe, and indeed to take the Doe’s deposition, to pursue its theory that the Doe’s use of its copyrighted work was not fair use because the Doe was secretly affiliated with Amway, one of Signature’s competitors, and the purpose of the posting was to drive business away from Signature and toward Amway. The trial judge decided that this contention had sufficient merit to warrant allowing Signature’s lawyers, but only Signature’s lawyers, to obtain access the to the Doe’s name for the purpose of pursuing its potentially legitimate copyright claims. The judge issued a protective order confining access to the Doe’s name to attorneys’ eyes only.

Plaintiff obtained answers to written interrogatories and took Doe’s deposition; in light of what it learned during this discovery, plaintiff abandoned its argument that the Doe was commercially aligned with Amway. Instead, its “commercial use”arguments were only that the blogger received a free blogging platform on WordPress and that WordPress derived commercial benefits from the existence of the blog, and that the blogger’s purpose of harming Signature by criticizing it was a commercial use. Signature’s summary judgment memorandum (which is in the district court record with small portions of confidential information redacted) mentioned the defendant’s name only once, in passing (see the redaction on page 2 for the context), never suggesting that the name was relevant to the issue of whether summary judgment should be granted or withheld. Similarly, the district court, in the course of its summary judgment ruling, never felt the need to mention the Doe’s name in deciding that summary judgment could not be granted in the Doe’s favor on the issue of fair use.

The district judge never addressed whether summary judgment could be granted against the Doe on the issue of fair use pertaining to the Doe’s past use of the document. However, the judge indicated that because Doe had admitted posting the entire document, and given her “finding that summary judgment cannot be granted on his affirmative defenses,” this meant the plaintiff was entitled to some form of relief. That relief, she said, would likely be injunctive relief in Signature’s favor requiring the Doe to destroy the copy of the copyrighted work that she thought the record showed to be remaining in the Doe’s possession. At the same time, Judge Levy was not persuaded that there was any likelihood of that infringing display of the work would be repeated (given the Doe’s assurances and given the fact that no infringement had occurred during the entire course of the Michigan litigation). Therefore, she was unwilling to enjoin future infringement. Nor was the judge persuaded that plaintiff’s legitimate interests in protecting its copyright entitled it to know the Doe’s name, and thus that the Doe’s interest in avoiding harassment outweighed any claim from Signature that it needed to know Doe’s identity.

Plaintiff renewed its motion for injunctive relief, but the Doe moved for reconsideration of this order, pointing out that the judge’s assumption that Doe retained any copies of the infringed work was mistaken, because Doe’s only copy had been destroyed before the Michigan infringement lawsuit was filed. The judge accepted this assurance, and so instead of issuing an injunction, she only granted judgment in plaintiff’s favor on its claim of copyright infringement — in effect, a declaratory judgment of infringement.

The Appeal

The Doe chose not to appeal the grant of summary judgment against him, and Signature appealed only the failure to identify the Doe in the judgment, without contesting the court’s refusal to grant any injunctive relief in its favor. It relied on two main grounds – first, a ground it had never argued below, that the general presumption favoring public access to judicial records required disclosure of the defendant’s name, and second, that it needed to know the Doe’s name so that it could effectively enforce the judgment its favor by monitoring Doe’s compliance.  A related contention was that, have been adjudicated an infringer, Doe no longer had any First Amendment right to keep his speech anonymous. Doe opposed the appeal, arguing that the trial court correctly applied the Art of Living balancing approach. EFF chimed in with an amicus brief that argued for Dendrite-style balancing, and contending that the need for such balancing survives a judgment holding the defendant nominally liable.  (The issues and precedents through 2012 are canvassed here.  Here are links to pages about Dendrite-style appellate rulings from such diverse states as ArizonaMaryland, New Hampshire, and Pennsylvania.)

The Sixth Circuit addressed both issues. The majority opinion began by embracing the right to speak anonymously and the need for a legal standard that properly balances the defendant’s right to speak anonymously against the defendant’s right to obtain identifying information that it needs to protect its legal rights. The court did not expressly choose between the Doe v. Cahill approach, which holds that once the plaintiff has established a prima facie case that the defendant’s speech was wrongful and shown that the claims are legally valid, the Doe must be identified, and the Dendrite v. Doe approach, followed by a bare majority of state appellate courts, under which even after a prima facie case is established the court should conduct a balancing of First Amendment interests, However, its opinion implicitly endorsed the district court’s use of the Art of Living approach, which employs such a balancing. Indeed, the court of appeals agreed that even though the defendant was now a judgment loser, the trial court could properly have exercised its discretion to allow the Doe to retain the right to keep his speech anonymous in light of the danger that unmasking could have a serious chilling effect and in light of the fact that, despite the Doe’s single act of infringement, the great bulk of the Doe’s speech was legally protected under the First Amendment. This is precisely the sort of balancing that is properly conducted in cases such as Dendrite. And given the fact that the remand allows the trial court the possibility of upholding anonymity pursuant to a proper balancing, the holding of the case has to be that balancing is required even if the defendant's liability has been shown, not to speak of being merely shown on a prima facie basis.

On the other hand, turning to the issue of public access to court records, the majority held that, just as there is a presumption favoring public access to court records, there is a general presumption that the names of the parties will be public, and that presumption applies once the court has issued a judgment holding a given party liable. The district court’s error, said the majority, was in its failure to recognize this general presumption and figure it into its balancing analysis. The majority thus vacated the decision below and directed the trial court to reconsider whether, on balance, the defendant’s First Amendment interest in remaining anonymous outweighs both the public’s interest in seeing court records so that it can understand the reasons why judges have decided cases as they have and thus to hold judicial officers accountable, as well as the plaintiff’s interest in identifying the defendant so that it can effectively enforce its judgment, including monitoring the defendant’s compliance with injunctive relief.

Judge Suhrheinrich dissented. For him, once the defendant has been adjudicated as a copyright infringer, his speech is legally wrongful and there is no First Amendment right to keep wrongful speech anonymous. Moreover, the dissenting opinion expressed concern that Doe has argued below that he was the prevailing party, thus suggesting that he was not taking seriously the adjudication of infringement, and that denying the plaintiff access to the name of the defendant unfairly hampered its monitoring of defendant’s compliance with the trial court’s injunction and made it dependent on its lawyers to conduct that monitoring.

My Take on the Sixth Circuit Decision

As the original proponent of the Dendrite balancing approach, which was taken by the New Jersey Appellate Division from what Karl Llewellyn would have called the “opinion kernel” of our amicus brief in that case, it is gratifying to see the Sixth Circuit effectively embrace that approach in its opinion in this case. Certainly when the parties are litigating over discovery to identify anonymous defendants at the initial stages of litigation in federal courts within the Sixth Circuit, there is good reason to believe that Dendrite balancing is now the law of the circuit. Such balancing was implicit in the Ninth Circuit’s Anonymoyus Online Speaker’s decision; it is good to see this approach making further progress in the federal appellate courts.  (Irony alert:  in the Ninth Circuit case, the party arguing for the right to speak anonymously was Signature Management Team, whose members' criticisms of a different multilevel marketing operation were at issue there).

There were, however, some oddities in the majority’s discussion of the issue of public right of access to judicial records. Public Citizen has strongly supported that right; indeed, we have brought a number of the foundational cases in the area. But there is a Supreme Court decision athat goes strangely unmentioned in either of the opinions in the case (nor was it mentioned in the appellate briefs): Seattle Times Co. v Rhinehart. Although the context was slightly different, Seattle Times holds that when information is obtained in discovery subject to a protective order, the party obtaining that information does not have a First Amendment right to disseminate that information. Here, the plaintiff has the defendant’s identifying information only because it obtained that information in discovery, subject to a very strict protective order issued to prevent, as the Supreme Court said in Seattle Times, the plaintiff from “obtain[ing] – incidentally or purposefully – information that not only is irrelevant but if publicly released could be damaging to reputation and privacy.”

To be sure, Seattle Times was about the constitutional rights of a party that obains information through discovery; the fact that information came from discovery is not dispositive of the public's right of access cases.   If  information thus obtained becomes part of the basis for the arguments that a trial judge considers in making a dispositive ruling in the litigation (such as on a motion for summary judgment), the material is a judicial record subject to the presumption of public access. But my review of the record suggests that the name of the defendant was irrelevant to the trial court’s summary judgment decision. The defendant’s name appeared only one time in Signature’s entire briefing on the cross-motions for summary judgment – in a recitation of the facts where Signature mentioned the defendant’s name in passing (see page two of its opposition to Doe’s motion for summary judgment). But by the time summary judgment was being briefed, plaintiff had abandoned the theory of “commercial use” on which it had relied as a basis for obtaining the defendant’s name, and the trial court found no need to mention the Doe’s name in the course of its rulings on summary judgment. Nor is there any reason to believe that the public at large has any interest in learning the name of some blogger who posted the entire contents of some obscure instructional manual for a brief period of time nearly five years ago.

Indeed, the plaintiff’s entire argument about the claimed importance of disclosing the Doe’s identity is that the plaintiff allegedly needed the information to enforce its judgment. In the trial court, because it was arguing at that time for entry of an injunction against further infringement, plaintiff’s only argument was that it would need Doe’s name to monitor compliance with the injunction that it was asking the court to issue. On appeal, even though Signature did not appeal from the denial of injunctive relief, it continued to refer to its expressed concern that the Doe would repeat his acts of infringement and insisted that it needed to identify the Doe to monitor obedience to the trial court’s injunction – an injunction that had not been entered. Unfortunately, Judge Suhrheinrich missed the fact that no injunction had been entered (or was still sought) and explained his dissent by discussing the plaintiff’s need to enforce an injunction.

Moreover, the court’s opinion appears to fudge the distinction between the general presumption that the parties to the litigation will be identified and the presumption of access to judicial records on which the trial court relied in making a decision about the merits. Although plaintiffs are typically not allowed to sue as Does, there are notable exceptions where the plaintiff can show a particular need to keep her privacy, such as the many cases in which plaintiffs have brought suit to prevent states from interfering with highly private medical operations — as long ago as Roe v. Wade and as recently Garza v Hargan.  Such Doe plaintiffs are often allowed keep their privacy whether or not they prevail in the litigation. On the other hand, it has become quite common for lawsuits to be brought against Doe defendants for a variety of reasons, and the names of those Doe defendants are very often not added to the caption. And where the Doe has a good reason to keep his name out of the hands of the public, the fact that the defendant has not succeeded in the litigation might similarly be irrelevant to whether the Doe needed to be named in the caption – the question remains what the need is for identification.

The Proper Outcome in This Case

In sum, to my mind, this appears to be a case in which, in the course of an otherwise fully protected course of critical speech directed at the plaintiff, the blogger committed a technical act of infringement, of a copyright that the plaintiff apparently did not even own (see the Doe’s appellate brief at page 3) at the time of posting; nor was the copyright registered at the time of the infringement. Although the Doe ceased his act of infringement promptly on learning of the takedown demand, and subsequently destroyed his copy of the document, the plaintiff filed a copyright infringement lawsuit more then seven months later. In the course of that litigation, the plaintiff asserted that the brief period of the Doe’s infringement had caused harm to its market for the document, but it chose not to make any showing of actual damages, and of course it could not seek either statutory damages or attorney fees because registration came so long after the first publication. Given the showing in the trial court of the way in which perceived enemies of multilevel marketing companies are abused by the adherents of these companies, it seems quite possible that the very reason why this lawsuit was brought was to obtain unmasking and not to serve any substantial copyright purposes.   Even if the trial judge was right in assuming that she was presiding over a genuine case or controversy, she  concluded that there was so little reason to believe that recurrence of the infringement was likely that she awarded only token relief – a judgment of infringement — without issuing any injunction or other form of relief, including unmasking. This may well have been a very sensible equitable judgment. It will be interesting to see what the trial judge does on remand.

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