Thar be safe harbor: Reddit defeats third attempt to unmask digital pirates

First Amendment is a rule, not a guideline, says judge

Digital pirates dropping anchor on Reddit for a bit o' parley can consider themselves harbored in relatively safe waters, as US courts have decided for a third time in the past year that they're protected from identification by the First Amendment.

The latest decision, issued [PDF] last week, comes in response to a motion [PDF] to compel Reddit to hand over the IP addresses of six users who regularly discussed digital piracy on the site.

The case, brought film studios Voltage Holdings and Screen Media Ventures, is linked to the ongoing bankruptcy of the ISP Frontier. The lawyers argue that comments made by these Redditors show the ISP hadn't done enough to blow illegal downloaders out of the water, and thus owes them money.

Reddit disagreed with the studios, arguing that even if it was only required to hand over the IP addresses, the motion was still a request to unmask users whose anonymity was protected by the First Amendment. Reddit also argued the information being sought could be obtained from the Frontier directly – so Reddit didn't need to be involved.

Thomas Hixson, a federal magistrate judge in northern California, agreed with the online megaforum.

"The First Amendment protects the rights of individuals to speak anonymously," Hixson wrote in his denial of the unmasking request.

To give you a flavor of these anonymous discussions, one of the pirates wrote: "Been using Frontier DSL for years. Despite the sh*tty internet, they didn't give a sh*t what I downloaded. But I download ONE game just for screenshots and Comcast throws me into a legal battle." Another said: "I've been torrenting unprotected for like a decade and never gotten [a DMCA notice]."

To us, this is all about going after people based on what they said online rather than what they've actually done or might have done.

Strike three – you're out?

Hixson's analysis of the case he decided last week makes repeated mention of two prior decisions in favor of Reddit in the past year: one issued in April [PDF] and the other in July [PDF]. 

Those requests for unmasking, while not related to the decision last week, were filed by the same copyright lawyer – Kerry Culpepper – on behalf of many of the same film studios. Both cases involved lawsuits filed by film studios against ISPs for failure to cut off service to movie pirates who've been served with DMCA notices. 

As opposed to the latest request, which was only seeking IP addresses for the Reddit users in question, the prior cases asked for Reddit to fully unmask users by providing their names, email addresses and phone numbers, along with IP address records. 

In both of the earlier cases, Reddit refused to hand over the requested data because "there is no need for the discovery that outweighs the users' First Amendment right to speak anonymously online." In both cases, judges denied Culpepper and his clients' unmasking requests "because on this record, the First Amendment bars the discovery." 

Despite the demand for detailed user information, we're told there was no intent on the part of the film studios to sue the Redditors – only to gain information that would bolster the film studios' cases by linking the IP addresses to piracy acts against the ISP. None of the three judges that issued the decisions seemed to care – Hixson least of all. 

"A higher standard for unmasking a non-party witness exists than for unmasking a potential defendant because – unlike the need to identify a potential defendant – litigation can often continue without interfering with a non-party witness's First Amendment right to anonymity," Hixson wrote in his decision to deny the latest request. 

Hixson noted that, despite Culpepper's argument that the latest case was different from the first two because his clients were only seeking IP addresses, there's no fundamental difference. 

"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,'" Hixson wrote, citing a 2017 case in California's southern district. "For this reason, the Court finds no reason to believe provision of an IP address is not unmasking subject to First Amendment scrutiny." 

It's not clear what Culpepper and his clients' next move may be, though we're told the window for filing objections to Hixson's opinion is still open. 

Reddit didn't respond to questions for this story. ®

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