On November 28, 2017, the Sixth Circuit, in a 2:1 decision, ruled on the anonymous copyright infringement case we discussed back in April. The central issue in the case involved whether an adjudicated copyright infringer can remain anonymous. A decision in favor of the infringer could encourage anonymous unlawful speech. A decision in favor of the judgment plaintiff could encourage suits designed only to “out” the name of an anonymous critic.
In a case of first impression, the Sixth Circuit didn’t make a final decision. See Signature Management Team, LLC v. Doe, No. 16-2188, 2017 WL 5710571 (6th Cir. Nov. 28, 2017).
The Court remanded the case back to the district court to balance the infringer’s anonymity interest against both the judgment plaintiff’s interest in unmasking the infringer and the public’s interest in open judicial proceedings, with a presumption in favor of disclosure of the infringer. In short, the Court held that the infringer’s anonymity was not automatically lost upon his defeat in the litigation … at least under these circumstances.
On remand, the district court should consider the following:
- the public’s presumption in favor of disclosure is stronger or weaker depending on the public’s interest in the litigation (e.g., intentional acts, nature of copyrighted material, extent of infringement, reach of infringement)
- the judgment plaintiff’s presumption in favor of disclosure is stronger or weaker depending on the plaintiff’s need to unmask the infringer (e.g., ongoing remedy such as permanent injunction)
- the infringer may rebut these presumptions by showing that “he engages in substantial protected speech that unmasking will chill”(here, the infringer was an anonymous blogger on other issues besides those in the litigation)
The dissenting judge took a simpler view of the anonymity issue:
Copyright infringement is not protected speech—just like obscenity or fighting words. If Doe’s speech is not protected, then no balancing is required. To the extent that unmasking him here will harm his ability to exercise his right to anonymous speech in the future, that is collateral to the issue before us and therefore not properly considered in this proceeding. I see no need for further analysis and would remand with instructions that the district court reveal Doe’s identity.
Watch for further developments …
Less than two weeks after the National Institute of Standards and Technology (NIST) published a draft version of NIST SP 800-171A, Assessing Security Requirements for Controlled Unclassified Information, on November 28, the National Archives and Records Administration (NARA) announced today that the comment period has been extended to January 15, 2018. This gives interested parties an extra three weeks from the original deadline to provide input on what contractors and their customers may use as a guide to assessing future compliance with the security standard and – importantly – the government contracts regulations that incorporate that standard, including DFARS 252.204-7012 and FAR 52.204-21.