Prof. Rodney A. Smolla, President, Furman University
May 19, 2011

For many years the First Amendment has been understood as protecting an individual’s right to engage in anonymous speech.  Anonymity is also a signature characteristic of much of the communication that takes place on the Internet.  In copyright infringement cases arising from claims that copyrighted works are being infringed through file-sharing activity, such as the file-sharing protocol BitTorrent, attempts to enforce the rights of copyright holders are placed in tension with the putative rights of the alleged infringers to engage in their file-sharing activity anonymously.  Copyright holders may seek to pierce the veil of anonymity through judicial process, using ISP addresses to obtain identifying information.  The file-sharers may in turn attempt to quash subpoenas seeking such identifying information, asserting that the First Amendment’s protection for anonymous speech should bar disclosure.

The best resolution of this conflict is to reject the First Amendment defense and to allow for judicial process that will provide what identifying information is available to copyright holders to pursue their claims of infringement.

The First Amendment right to anonymity grew out of a powerful line of cases protecting core political speech.  Anonymity may facilitate dissent, by protecting those engaged in the expression of controversial expression from persecution.  Anonymity has been linked in our culture and our law with human progress, emboldening courageous calls for social change and political justice.  “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”1  The Supreme Court thus protected the anonymity of members of the NAACP during the emerging years of the Civil Rights Movement, at a time in which the compelled disclosure of the names of NAACP members could well have threatened the capacity of the NAACP to advance its agenda.2

Anonymity has also been linked to the creative process, and by extension to intellectual property creation and protection.  As the Supreme Court explained in one of its most famous First Amendment anonymity cases, McIntyre v. Ohio Elections Commission,3 “[d]espite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose her true identity.”4  In weighing the interests of the public in disclosure of the name of a political advocate or creative writer against the interests of the advocate or writer, the Supreme Court has held that the balance tips heavily in favor of protecting anonymity.  Entry into the marketplace of ideas may not be conditioned on the production of identification papers:

The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.  Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.5

A substantial body of law has developed in Internet litigation protecting the identity of Internet users from immediate disclosure through judicial process.  Much of the case law has developed in the context of libel litigation arising from the Internet, in which a plaintiff seeks disclosure of the true identity of a defendant who has been sued as “John Doe” or “Jane Doe” for alleged defamation.  Courts have fashioned various multi-part tests that require a defamation plaintiff to jump through a number of threshold hoops before the identity of an anonymous Internet user must be revealed.6  This body of law is designed to provide reasonable protection for anonymity, while at the same time allowing plaintiffs who are able to mount a credible showing that their libel suit is viable to identify the persons who are allegedly responsible for inflicting injury upon them.  While courts continue to evolve various tests in striking the best balance between these competing interests, the enterprise of striking the balance is eminently sensible.

In the case of alleged file-sharing of copyrighted works, however, no such balancing act is warranted.  Defamation cases are fundamentally different than file-sharing copyright infringement cases.  In defamation suits, the alleged injury to reputation is often intertwined with critique and dissent.  Indeed, the modern First Amendment standards governing defamation law arose from New York Times v. Sullivan,7 a case in which the alleged defamatory statements were made in the context of a defense of Martin Luther King and his efforts for racial justice.

In contrast, the First Amendment value inuring to illegal file-sharing is minimal, if measurable at all.  To be sure, some have held up the “expressive value” in the file-sharer’s decision as to what music or movies are worthy of being copied or shared.8  While as an abstraction this argument might have some superficial appeal, if only as a straw man, in the end it is not terribly weighty.  One might as well claim that there is expressive value in the art thief’s decision to steal the Picasso and not the Van Gogh from the museum.

The reality is that there is little plausible expressive value in a file-sharer’s decision to obtain movies or music for free.9  While a very modest level of protection of anonymity might be warranted to screen out copyright infringement claims that are frivolous,10 there are no sound reasons of social policy or law for protecting the anonymity of those who independently are contributing nothing of genuine value to the marketplace of ideas, in that they are simply appropriating, without permission, the contributions of others, for the transparent motive of not paying the copyright owners.