Early last year, a group of filmmakers obtained a subpoena that required Reddit to reveal the identities of users who commented on piracy-related topics.
The movie companies said they were not planning to go after these people in court but wanted to use their comments as evidence in an ongoing piracy lawsuit against Internet provider RCN.
Reddit wasn’t willing to go along with the request, at least not in full. The company objected, arguing that handing over the requested information would violate its users’ right to anonymous speech. Reddit later responded similarly to a second and third subpoena request.
The movie companies took these cases to a federal court, asking it to compel Reddit to comply. The court refused to do so, thrice.
It’s Not Over Yet
The filmmakers are unhappy with these decisions and don’t intend to give up easily. After U.S. Magistrate Judge Thomas Hixson denied their most recent attempt last month, they moved for a ‘de novo’ review at the California federal court.
In their request, the rightsholders cite jurisprudence suggesting that an IP-address is not necessarily ‘unmasking’ personally identifying information. They believe that the Magistrate Judge ignored key arguments and ended up drawing the wrong conclusion.
“The Order’s conclusion that an IP address is unmasking information was contrary to law and erroneous,” the movie companies argue.
The companies insist that the commenters could prove crucial in their battle against ISP Frontier. A suggestion that there might be other ways to obtain similar evidence is premature, they argue.
The movie companies believe that Magistrate Judge Hixson failed to properly weigh the nature of the speech involved. Since the comments allegedly involve ‘illegal’ activity, anonymous speech should not necessarily enjoy protection, they note.
“Movants previously pointed out that the comments at issue are boasts of criminal conduct. Accordingly, the speech concerns unlawful activity subject to no First Amendment protection,” the movie companies write.
Reddit’s Objections
In a replay of moves, Reddit objects to the request for a ‘de novo’ review. They argue that, as the court repeatedly found, the filmmakers have other non-intrusive options to gather evidence against Frontier. This includes seeking evidence from the ISP directly.
Reddit further notes that the filmmakers’ argument that IP-addresses do not “identify” users is misguided at best.
“Reddit does not require its users to give their real name or addresses, and so the only identifying information Reddit may maintain on its users is their IP address, which is precisely why the Movants here seek the users’ IP addresses. If IP addresses were not identifying, Movants would not be seeking them.”
At worst, the argument is disingenuous, Reddit notes. The movie companies previously used a Redditor’s IP-address to obtain the name and address of a subscriber, requesting their torrenting history and more.
“[A]fter Reddit provided Movants with IP address data for a single Reddit user last year, the Movants immediately identified that IP address by subpoenaing T-Mobile, and they have been harassing that user with motions practice ever since,” Reddit counters.
Illegal Speech?
Finally, Reddit addresses the suggestion that the nature of the speech may be unlawful and that it therefore deserves “the lowest” First Amendment protection, or no protection at all.
While the nature of speech indeed plays a role, Reddit stresses that its users are merely third-party witnesses in this case, and that no court used lower protection standards in similar circumstances.
The second suggestion, that the comments themselves are unlawful and therefore undeserving of First Amendment protection, wasn’t brought up earlier and should therefore be ignored, Reddit says. If the court decides to review it, however, it should be rejected.
“[T]he Court can easily reject it anyway as wholly inconsistent with fundamental First Amendment jurisprudence. Free speech in America is not so flimsy that it evaporates at the faintest whisper of illegality,” Reddit writes.
It is now up to the court to decide whether the movie companies get the chance to argue their case anew, or if the current decision stands. Whatever the outcome and given the recent history, further appeals or new cases can’t be ruled out.
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A copy of the movie companies’ request for a ‘de novo’ determination is available here (pdf) and Reddit’s objections to it can be found here (pdf)
