The Sixth Circuit Creates a New Standard for Unmasking an Anonymous Copyright Infringer Post-Judgment

In an issue of first impression, the Sixth Circuit held that a presumption existed in favor of unmasking anonymous defendants post-judgment, a presumption that should be applied in tandem with the separate presumption in favor of open judicial proceedings. Accordingly, the district court's reliance on a balancing test governing the unmasking of anonymous defendants pre-judgment, i.e., in the discovery phase, was insufficiently tilted toward the presumption of open judicial records (to maintain society's faith in the judiciary) and the need for the non-infringer to enforce its remedy. Accordingly, the Sixth Circuit reversed and remanded to the district court to apply the new test.

A dissent likened the majority to Doe's “overprotective parent” and principally argued that Doe's infringing speech was categorically excluded from First Amendment protections, so no balancing was warranted. The majority acknowledged that Doe's infringing speech was unprotected, but instructed the district court to determine whether the infringing speech occurred in the context of his anonymous blog activities, which constituted protected speech. Important to the majority was that Doe had ceased any infringing activity by destroying all copies of the work in his possession, so the district court needed to determine whether unmasking him was warranted given the absence of plaintiff's ongoing injunctive relief.