Ruling on what it characterized as an issue of first impression, the U.S. Court of Appeals for the Sixth Circuit suggested that a judgment of liability in a copyright infringement case may be a tipping point justifying the unmasking of anonymous internet users. The Sixth Circuit remanded Signature Mgmt. Team v. Doe, No. 16-2188 (6th Cir. Nov. 28, 2017) to the district court with instructions to reconsider unmasking the anonymous defendant, finding it had “failed to recognize the presumption in favor of open judicial records,” which is particularly strong at the judgment phase. However, the 2-1 majority pointed out reasons why unmasking still might not be necessary, triggering a dissent suggesting the majority didn’t go far enough.

In Signature Mgmt. Team, the plaintiff, a multi-level marketing company, sued defendant Doe after he posted on his blog a link to the entirety of a book copyrighted by plaintiff. Among other relief, the plaintiff moved to compel the identity of Doe. The district court required Doe to reveal his identity to the court and plaintiff, but found that unmasking Doe was “unnecessary to ensure that defendant would not engage in future infringement.” Further, the district court found that, because Doe declared that he had destroyed all copies of the infringed work in his possession, no further injunctive relief was necessary. Plaintiff appealed, arguing in part that the district court improperly disregarded the strong presumption in favor of openness of judicial records.

At the outset, the Sixth Circuit noted that the instant case was unique, because prior rulings balancing the First Amendment right to anonymous internet speech against a plaintiff’s interest in unmasking the defendant, considered the issue at the discovery stage. At that stage, one major consideration is safeguarding against unmasking potentially non-liable defendants. In Signature Management Team, that concern was obviated because judgment had been entered against Doe; however, the Sixth Circuit did not find that dispositive. Instead, the court endorsed a balancing of factors post-judgment and observed that, for example, “where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant.”

Central to the unmasking decision was the conflict between Doe’s anonymous speech rights and the presumption of open judicial proceedings. The Sixth Circuit held as a matter of first impression that there was a general presumption in favor of unmasking defendants who had been found liable, but that the strength of the presumption varied. Among the factors the court identified as making the presumption more difficult to defeat were economic loss, reach of the copyrighted material and the infringed version, and the infringer’s intent, as well as a need to unmask the defendant to enforce the plaintiff’s rights. By contrast, the Sixth Circuit also indicated that “a Doe defendant may rebut the presumption of openness by showing that he engages in substantial protected speech that unmasking will chill.” Further, it suggested that a district court could “reasonably enter a judgment that conditions a defendant’s continued anonymity on the satisfaction of the judgment within a certain timeframe” if the public interest was minimal and the defendant’s interest in remaining anonymous was great.

While the 2-1 majority ultimately held that there is “a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff,” the dissent criticized the majority’s reasoning as “like that of an overprotective parent” for its suggestions that, despite the judgment, there were justifications for permitting the defendant to remain anonymous. Both the majority and the dissent agreed that speech constituting copyright infringement was not entitled to First Amendment protection. According to the dissent, that meant no balancing test was necessary to protect the defendant’s rights. The majority countered that because the speech “occurred in the context of anonymous blogging activities” entitled to First Amendment protection, weighing equitable factors was necessary, as an unmasking order would “unmask [Doe] in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.”

The majority also dismissed the dissent’s concern that failing to unmask Doe would “minimize[] the effect of the court’s order,” because Doe had already complied with the order. The majority did not directly rebut the dissent’s suggestion that maintaining Doe’s anonymity would “encourage[] future misconduct,” but directed the district court to consider any “concerns identified by the dissent [that] cut in favor of unmasking Doe” on remand.

At first blush, the Signature Mgmt. Team opinion’s language regarding the presumption in favor of unmasking appears to endorse reduced First Amendment protection for anonymous speech post-judgment. But rather than hold that infringement liability automatically justified unmasking, the Sixth Circuit considered a broad array of concerns – from the public interest to practical need – suggesting that unmasking in the post-judgment context will still entail a balancing test rather than a bright-line rule.