Every day, millions of people from all over the world submit posts, comments, and other content to Reddit.
In many cases, discussion comments are read and soon forgotten but several old threads were brought back to life recently as part of piracy liability lawsuits.
The comments in question were picked up by Kerry Culpepper, a copyright attorney who leads several piracy lawsuits against Internet providers on behalf of independent film companies. While they say they’re not interested in pursuing legal action against these people, their comments could serve as important evidence.
Filmmakers Try to Unmask Redditors
Early last year, the film companies subpoenaed Reddit for the first time, requesting the personal details of several users. Reddit refused to cooperate, defending their users’ right to anonymous speech, and found a California federal court in agreement.
In a second attempt a few weeks later, several film companies sent a similar subpoena to Reddit. This time, the request was more targeted, as all comments specifically referred to the ISP being sued; Grande Communications.
Reddit still refused to comply, however, stressing that its users’ First Amendment rights would still be at stake. After hearing both parties, Magistrate Judge Laurel Beeler sided with Reddit once again.
Reddit III: Targeting IP-addresses
While the denial was another setback for the film companies and their attorney, they had no plans to abandon this route to evidence quite so easily. Last month, they were back in court with a similar but tweaked request, this time related to a lawsuit targeting Internet provider Frontier Communications.
Broadly speaking, the third case was comparable to the others. The film companies, including Voltage Holdings and Screen Media Ventures, wanted to use comments made by six Redditors to show that the ISP didn’t take proper action against repeat infringers, or that ‘lax’ enforcement acted as a draw to potential pirates.
Contrary to the earlier requests, the film companies were no longer looking for any names or email addresses, only the applicable IP address logs. This would allow the commenters to remain anonymous because an ‘IP-address is not a person‘, their attorney argued.
Reddit, again, refused to hand over information, arguing it would violate users’ right to anonymous speech. The fact that it would only have to reveal IP-addresses wouldn’t change that, Reddit argued.
Court Sides with Reddit, Thrice
After both sides had the chance to present their arguments, the matter landed on the desk of U.S. Magistrate Judge Thomas Hixson of the California federal court. After reviewing the paperwork, Judge Hixson denied the motion to compel.
Similar to the decisions in Reddit I and Reddit II, the court concluded that the First Amendment rights of individuals to speak anonymously weigh stronger than the interests of rightsholders. This is particularly true because the Redditors are third parties and not defendants in this case.
Of importance in this decision is the so-called ‘2TheMart.com’ standard, which was also applied in the earlier two cases. From that perspective, the court sees no reason to reach a different conclusion.
This case deals with comments from six Redditors that could serve as evidence in the film companies ‘legal battle with Frontier. However, the court believes that the rightsholders can obtain similar evidence from a more direct source.
In the legal proceeding against the ISP, the court previously ruled that the film companies can unmask several alleged pirate subscribers. This could be used to obtain comments directly from Frontier subscribers.
“[T]here is information available from another source, as Movants themselves note the underlying bankruptcy court adjudicating the copyright litigation has already ruled they can obtain identifying information from Frontier for IP addresses known to have pirated using Frontier’s network,” Judge Hixson writes.
“If Movants sought further information, they need only subpoena the ISP for the subscriber information associated with that IP address, as the ISP does not share Reddit’s interest in protecting the anonymity of that user.”
Anonymous IP-addresses?
Judge Hixson didn’t elaborate in response to the filmmakers’ novel argument that sharing IP-addresses wouldn’t violate the First Amendment right to anonymous speech (‘not a person’).
According to the ruling, current precedents suggest that it’s not common to disregard the First Amendment argument when it comes to IP-address unmasking.
“While the Court is unaware of any cases in the Ninth Circuit in which a court has declined to apply a First Amendment unmasking standard for IP addresses, other courts have recognized that IP addresses are essential to unmasking because an ‘IP address cannot be made up in the same way that a poster may provide a false name and address’.”
“For this reason, the Court finds no reason to believe provision of an IP address is not unmasking subject to First Amendment scrutiny,” Judge Hixson writes.
The court further added that the film companies can still use the Redditor’s comments as evidence, as is. Printouts of webpages have been used at previous trials as well, so that could apply here.
Based on these and other arguments, Judge Hixson ultimately reached the same conclusion as the court did in the earlier two cases.
“In sum, the Court finds Movants cannot meet the 2TheMart standard because the evidence they seek can be obtained from other sources, including from Frontier in the normal course of discovery.”
If the rightsholders are unable to obtain the desired evidence from Frontier, they could always try again, of course. If anything, the film companies have shown that aren’t prepared to give up easily.
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A copy of U.S. Magistrate Judge Thomas Hixson’s order is available here (pdf)
