IP Law Daily, COPYRIGHT—N.D. Cal.: In ISP lawsuit, unnamed Reddit commentators are protected by the First Amendment, (May 2, 2023)

By Matthew Hersh, J.D.

Movie studios targeting RCN could not unveil the identity of social media commentators without a heavy showing of need.

The fact that anonymous users of social news aggregator website Reddit were drawn to internet service provider RCN because of its allegedly lax copyright enforcement policies could not be used as evidence that the service was liable for copyright infringement, the federal court in San Francisco has held. But the court, in denying a motion to enforce a subpoena to unveil the Reddit users’ identities, found that the copyright owners who were targeting the ISP—at least under the specific facts of this particular case—had not made a sufficient showing to pierce those users’ anonymity because they had not shown that the information they sought was unavailable from RCN itself (In re: Subpoena to Reddit, Inc., April 28, 2023, Beeler, L.).

The dispute arises out of a copyright action brought by the movie studios behind the 2017 box office smash The Hitman’s Bodyguard, the critically panned Rambo: Last Blood, and several dozen others. The studios sued internet provider RCN in a federal court in New Jersey, alleging that the ISP was liable for copyright infringement because it induced, or at least turned a blind eye to, its subscribers’ sharing of those movies through the BitTorrent network. In November 2022, in a decision applauded by copyright holders but criticized by some commentators, the New Jersey court rejected the ISP’s motion to dismiss and allowed the case to proceed.

The dispute that brought this lawsuit to California arose out of the production companies’ discovery efforts in the New Jersey case. The movie producers served a subpoena on Reddit, the popular online forum, to uncover the identity of nine persons who had posted anonymously on the service. Reddit refused to comply, citing the First Amendment interests of its users. The movie producers then brought a motion to compel Reddit to comply with the subpoena, leading to this opinion.

Motion to compel. The court denied the motion to compel, finding that the producers had not shown that their need for the evidence outweighed the first amendment interests of the anonymous Reddit users. The decision turned to some extent, the court noted, on the standard applicable in the Ninth Circuit where copyright owners seek to uncover the name of anonymous forum users. The movie producers argued that the Copyright Act provided the anonymous users all the protection that they needed, insofar as First Amendment principles were already incorporated into the fair use doctrine. That might be true, the court noted, where the alleged infringer himself was the target of the subpoena. But here, where the subpoena targets had nothing to do with the infringement but were merely sought to provide evidence in the case, the court noted, circuit caselaw imposed a higher First Amendment test.

Under that test, the court found, the subpoena failed to pass muster. For most of the users, this was an easy call. As to four of the users, the court noted, their online comments were not necessarily even about RCN, as opposed to other ISPs. Several other users commented about RCN’s relative power to control their conduct—such as being able to reset their modems from afar or to redirect their internet browser to certain pages—but that also would not support the subpoena, the court noted, because evidence about RCN’s capabilities was available from the service provider itself. The information was therefore not “unavailable from any other source,” the court noted—one of the threshold categories for piercing anonymity against a first amendment claim.

Only one comment required further discussion by the court—but this too came out the same way. The user in particular, “ChakiraFan,” commented publicly that RCN seemed “fairly lax” about enforcing copyright infringement notices from “torrent monitors”—that is, companies hired by copyright owners to keep track of copyright infringement on BitTorrent. “Of all the comments at issue here,” the court noted, “this is the closest call.” The studios contended that this comment helped show that RCN did not implement a sufficient counter infringement policy and that customers were “drawn to the ability to freely pirate on RCN’s network.” That might well be the kind of evidence, the court noted, that would be unavailable from RCN itself, and thus discoverable by means of a subpoena. But in this case, the user was apparently drawn to RCN not because its lax enforcement policy overall but merely because of its lack of data caps—“which is another technical issue,” the court noted, “that can be illuminated by discovery from RCN itself.” Thus, the subpoena would fail on all counts.

The Case is No. 3:23-mc-80037-LB.

Attorneys: Hayden Schottlaender (Perkins Coie, LLP) for Reddit, Inc. Kerry Steven Culpepper (Culpepper IP, LLLC) for After II Movie, LLC, Bodyguard Productions, Inc., Hitman Two Productions, Inc. and Killing Link Distribution, LLC.

Companies: Reddit, Inc.; After II Movie, LLC; Bodyguard Productions, Inc.; Hitman Two Productions, Inc.; Killing Link Distribution, LLC

Cases: Copyright TechnologyInternet CaliforniaNews