case sixteen two one eight eight signature management team l c vs john doe argument not to exceed fifteen minutes per side mr sneed you may proceed for the appellant may please the court michael a lower case the lower court case in a district court in the district court granted judgment in my client's favor and against the defendant granted an injunction in my client's favor but allowed the defendant to maintain his enemy and so we're here today because that's the first time that we know of that a court has ever allowed an adjudicated infringer to remain anonymous and as an infringer he does not have a first right the first minute right to maintain his anonymity and so we are here on appeal for that issue in how we got here my client published a book called the team builders textbook it sold over  district george get between the client and as a lawyer because of that right you know well there are there is such thing as a first amendment right to anonymity it just doesn't apply here yeah but when you when you attorney well and if a client has any rights that's one thing but that's what that's for i'm sort of on your side i guess in this regard in that question and that's my best answer the question i don't know the judge's mind but at that stage it was an early stage of the case and the judge expressly stated that she was trying to protect the defendant in case and i can find the exact words on the possibility that doe would ultimately prevail on his fair use defense she allowed him to maintain his intimate he as to my client the attorneys were in fact allowed to know his name for purposes of a deposition and then the court went on to say at that early stage that of course should plaintiff ultimately prevail in this matter those identity will be revealed in the court's judgment and grant  relief now for reasons that were not very well explained the judge changed their own mind and when we were granted judgment and relief the trial court judge did not identify the defendant by name so again that's why we're here on appeal is because we kind of got a hollow victory we you know it's going to be hard to enforce an injunction we don't know well let's talk about that there it seems like the whole purpose was to is to find his identity not to get him to stop doing this while the defendant has raised that question in the trial court in fact after the judge was entered the defendant  advanced the theory that in fact the defendant why do you need to know his identity i guess that's the question there's an injunction that's been entered that the judge is satisfied that it's not going to be violated if it turns out it's violated you know how to get them and i do but the client wouldn't know that that was the same individual because the client doesn't know this into the maybe on this ng something i did not understand the court in their department and junction understood the court  injunction that say you are going to are going to return or destroy all of the copies that you have of this book and then you're going to start a fight to me that that has been done and i thought you know i thought the judge said the relief that has been granted to you has been received were done here actually in a subsequent order the judge this was  conjunction with the defendant claiming to be the prevailing party the court clarified that no in fact plaintiff was the prevailing party and at that point confirmed that the relief sought by us was an injunction against future infringement and that was it designed merely to vindicate plaintiff's copyright court on the same opinion to say that although in the court's opinion unmasking doe was deemed unnecessary it was deemed unnecessary to ensure the  for destruction of copies in defense position and prevention of future infringement that was document over eighty two if you're looking for it so if the court i mean i understand what you're saying  and as far as i know this is like the first post judgment order like this but in the larger picture  so is a blogger which is something that is you know generally anonymous and the n the name of the if you weigh it and i think she did do way the anonymity in general or taking that away against what he against your complain basically which is that he published a small or he published your book without permission but he took it off and he destroyed the copies and that your need to know who he is just to maintain the relief that you were given is outweighed by the interest of  anonymity and what's wrong with that analysis a few things and try to address them or we are not talking about his right to blog and honestly he doesn't write a blog anonymously and he can continue to do so not a problem as long as he doesn't do anything illegal in that blog of course you can blog anonymously we're talking about the judgment and the judgment is narrowly a judgment for copyright infringement because he did infringe a copyright that's not appeal write copyrighted material that they can properly correct i'm sorry i'm struggling with the statement that they don't have a first amendment right if all they do the question is what was ordered and what was found to be in incorrect and misuse and whether that was remedy but separate from they at you retain every of the year unrelated i think you and i would agree you retain unrelated first amendment rights and if you have a blog that does something wrong with somebodies material and makes a whole bunch of other comments if the court says you can't do that with their material then then they've lost all ability to use that material that way or to comment on it but that doesn't say anything about the other things that they put on their blog right and that absolutely that's pretty standard and again he can continue to blog anonymously no one's saying you can't it's just with a question of what the judgment would say and the judgment there's a presumption in this country that there are open court hearings and it's a high standard to overcome that presumption and in this case there's really no basis for overcoming that presumption because as an infringer he lost his right to maintain an immanent anonymity this is in the cases a copyright infringer cannot hide behind the first amendment to maintain an and only for the most compelling reasons will court proceedings be closed and in fact if a court is to close court proceedings it must set forth specific findings and conclusions which justify non disclosure to the public so the default is open proceedings only for the most compelling reasons and in particular it is the defendant's burden to show clearly defined and serious injury if the court proceedings are to be close if they were to be open so in this case there wasn't really even asked to do the burden any really can't because as an adjudicated infringer he does not have a first amendment right to maintain his intimate with regard to the judgment against this does not reference his blog he can continue to blog anonymously and you know again the central purpose of copyright law is to discourage wrongful infringement and in this case there's been no discouragement for the defendant he considers himself the prevailing party so this will just encourage others to anonymously infringe copyrights and ok so there's a judgment against somebody named john doe defendant won't have to disclose this to potential employers he you know this is not a public record he does he's gets to escape all of the normal consequences of being an adjudicated infringer and there's no good reason for it again as the public and as a litigant there is a presumption of open proceedings and here because he's an educator adjudicated infringer there's no basis for allowing him to maintain an annuity there's the defendant would like the court to post judgment apply the same test that courts apply prejudgment but those balancing tests make a lot of sense early somebody is claiming a first amendment right and you know the name right of the blogger or the attorney honestly arad i couldn't tell you right now if you ask because i try not to think about it that i want to divulge it but yes it is accessible to me ok in any event the balancing tests do make sense early when you've got a defendant claiming a first mover right anonymity and you've got a plaintiff who you know could be filing a frivolous lawsuit just to find out the identity so at that point the courts do balance the strength of the plaintiff's case against the alleged first amendment right to anonymity but here those balancing tests don't make any sense all of the weight is on the side a defendant who is victorious who has a judgment you're saying we have to ignore the reality that once you know his name one trick client knows his name the client is free to do whatever he wants with it he can your client could do whatever he wants with respect to the blob and there's some evidence that bloggers and been harassed or threatened i don't there's any evidence that my client has no there isn't but you want to look at it is that in the sense that what all you're doing is telling the prevailing party who would be prevailed against but that ignores the reality of what's behind the scenes it ignores number one it ignores that this isn't this person's this person's principal activity has nothing to do with the and the infringement i mean he's not somebody who sort of makes a living from infringing or who has a history of infringing this is an incidental violation as part of plot and once a blogger is outed there's no i mean maybe it's a good thing i don't know but there are i don't know that you ever have anonymity in the future because the target of the industry that you're targeting or the topic you're targeting knows and will presumably publish that well first of all that's completely speculation there's no evidence that any of that would happen but more importantly the fact that this individual engages in free speech outside of the speech that was unprotected does not give extra protection we are engaging in free speech will engage in protected speech it doesn't mean unprotected speech in his case gets extra protection because he happens to be involved in a blog so you know if he engaged in something and it's occasion that it was he has to face the consequences and as the litigants and the public the public has a presumption of a right to know who that is and he has a high burden to overcome that in this case because he's been adjudicated infringer he does not have that right well and you arguing injunction the the language that you were referencing is in document eighty one i'm sorry and please eighty two eighty two and what is that ok it is in or if you have access to it but  it's on the top of page five you know what is the name of the docking oh i'm sorry it is order denying defendants motions for fees and costs denying plaintiff's motion for fees and motion for reconsideration was denied because the explaining that the defendant has already declared to the court that he's complied with the proposed inju relief and the the relief granted in this case is relief in the form of the destruction of all cop copies of the work retained by nothing prospect i 'm not saying anything i mean this is the order saying what the relief is maybe there are some language that's questionable in the attorney fees but i'm i'm catherine i'm just not seeing a perspective i just in what you're saying and i do think th the order itself that you're referencing wasn't as clear as it should have been which is nice that the court was able to clarify it later when joe came in claiming to be the prevailing party of the court pretty strongly corrected him in saying no you're not revealing party and in fact you know the plan of wasn't titled to injunctive relief destruction of the copies in defense position and prevention of future infringement so the court itself certainly thinks it ordered an know who the infringer is and the joys of it you get there your current that that that is actually a standard standard protective order provision of i believe i borrowed language from the seventh  she she proposed it to court but that's a standard provision in protective orders i know the ninth circuit in the seventh circuit have have standard terms which they urge people to use the sorts of circumstances in which that kind of thing  rises are precisely the sort that the court to deal with here the right to the point is an allegation was being made there are facts which we it was not my preferred relief my preferred relief would would have been for the court to say your contention that he must be acting on behalf of emily is purely speculative i'm not going to grant you discovery as to who he is based on that speculation instead what you said is i'll let you take discovery on that but it's going to be attorney's eyes only because your speculation may be wrong and i don't want you to there thereby learn who he is just by offering some speculation something about this i mean it's my lawsuit i don't know i'll  yours and i will indicate that that that issue is not on appeal the discovery of the protective orders and i understand that but i would urge you to understand that there are circumstances in which in their standard nothing and the question is with the end of the say there seems to be very little precedent out there and what do you do with me and if somebody still requesting to remain anonymous let me address that in in the process let me address something there was no injunction in this case the on the question of whether an injunction against future infringement should issues a court explained that insufficient evidence had been put forward to justify and she did not issue that she proposed to issue a destruction order based on the supposition that my client still had copies of infringing articles and asked for a briefing on the subject in briefing on the subject i pointed out that my client had actually destroyed all articles years before you know months before this litigation had even begun and on that basis the court indicated that her proposed injunctive relief because she had that should suggested that she might issue it but as for briefing was moot there was no injunction in this case and that's really really important if the balancing test is and i urge that the legal terms should be that the right to anonymity can only be overcome upon a showing of need in order to vindicate a legal right there was no showing of point of the attorney's fees order the court no longer had jurisdiction over anything except the attorney's fees order and she issued a statement that is being interpreted to clarify that she issued an injunction i don't believe that that's what it means but there's no such thing as an injunction wrong copyright copyright is a strict liability tork it's a congressional scheme which which which states that it is a copyright infringement even if one acts completely innocently even if one reasonably  believes that the matter that you're publishing is in the public domain reasonably believes that it in good faith etc but the congressional scheme has a scheme of penalties even an innocent infringer has to pay statutory damages ok copyright holder doesn't register its copyright until after the infringement has taken place they are barred from even getting the two hundred dollars that tore damages team here didn't even purchase the copyright in the after the infringement and then registered it and as a result team couldn't get the ordinary statutory damages that a copyright holders entitle to it could have sought actual damages but it chose not to and it banked everything on obtaining an address an injunction that subject to all of the equitable principles are normally subject to and it failed to obtain one therefore that it had no judgment or no it had no need this is not a case about impunity this is a case about a person who is soon as he learned that there is a claim of seal records upon a showing of a clear into the interest that the court found was precisely what judge white and you have been referring to which is the collateral impact on an anonymous blogger that he's being stripped of his anonymity this notion that he can continue to blog anonymously a silly people want to know who he is especially people in this industry and if a judgment with his name on it issues in this case it will be public knowledge of who he is that is an irreparable harm that is the harm intervene make somebody do something or refrain from doing something because damages aren't going to compensate them but it's a collateral harm yes you're as i think your honor pointed out this person writes a blog this relatively incidental matter which which which should have even been a case of controversy the only case or controversy that arose here was because there's an allegation well he's going to continue to do it he's going to remedy it sought and as a and was asked at that point to issue the remedy of stripping him of his an anemone and quite reasonably said what would what purpose would be accomplished by stripping the speaker of the right to anonymity when all the tap and is we've determined that a past act unlikely to be repeated constituted copyright infringement for which there is no damages and the congressional scheme offers no remedy other than an infringement and only upon a showing that hasn't been made well  i guess the answer is because this was a court proceeding court proceedings are open and you're taking an affirmative to close that but my client was involuntarily held into court in order to obtain a fish remedy that would prove too much your honor every court proceeding is open then the mere filing of a complaint means that two people are in court in the court as well and that's why they protect them in till it's determined whether they were the posing party was able to avail itself of the two hundred dollar no i think in that case and i've said this hypothetical in my briefing i think there are similar cases where a court could say ok you're entitled to a two hundred dollars fine you know i'm going to enter a judgment and anonymously and if you don't pay the judgment in a week two hundred dollars were paid today you're done but the point is to use can make all the right it's being protected is the right to be made whole and in the event that there's any risk of future harm to be protected against a future harm or determination is made here that there is no risk future harm but taking the possibility you under suggesting there may be yes there very well under the rule  proposing there very well may be cases where the court will say this is a willful infringer he's likely to infringe again i'm going to issue an injunction and i'm going to issued in his name so that you can go after him in the future because i think that that warranted under the act principles here i'm not denying that a court might very well make that the commission but a court might also say i think that the risk of future infringement is extremely low so i can issue some alternative relief such as to allow the attorneys to know the person's name and come back publicizing that i suppose would depend on the circumstances but an anonymous blogger is no different from any other person exercising the right to be anonymous the question is can the state power of discovery can the courts discovery power be used to find out who that person is and then publicize it where no other remedy other than simply wanting to that is that's being used at this  no it's not it's a judgment it's a judgment against a particular person but how the only way the court can issue in the judgment of that person's name is either to allow defendant to discover who he is or to demand that i you know that i tell them who use but i mean the the only way that this person has learned who who this anonymous person is is by using the courts and let's remember this whole case started by the issu sorts of litigation to be in as well we do i mean there's two separate situations when when a plaintive comes in and files a lawsuit voluntarily invoking the court and demanding judicial relief there's a whole separate set of of cases in which the courts require certain things to be shown a risk of harassment things like that then that those cases were cited below to this court as the standard here but when it when when one played that this whole topic of an anonymity it's risen during the internet but it existed before is when someone essentially files what's called a doe case you fall a case against a person alleging some wrong in alleging that you're entitled to some remedy and then you file sort of a subpoena to in this case the internet service provider and say who is this person i want to serve him with a complaint and i'll tell you ninety nine percent of the time the subpoenas in meat is entered within a few weeks and that's the end of it there are thousands and thousands of cases very very rare circumstance that a what the ice people often do is receive the subpoena send a note to the person at issue saying we've got the subpoena you've got a week or two weeks or three weeks to show up in court with a motion otherwise we're going to out you know it happens all the time there are law firms devoted to following these lawsuits and to finding out who people are if that person is fortunate enough to find an attorney who's able to bring a motion to quash and come up with a legal theory  in this case yes because in this case in the absolute absence of any such relief there's no showing of need but still it would have been up to the court's discretion to make that determination i think that it's yes it's a constrained discretion it's a court if  in situations where the court said that the need was outweighed i think the court should examine this courtroom examine that to determine whether you know the court did just as with the sealing cases it's a constrained in the flesh descriptions of what under what that would have been a very strong justification for not letting his nine be and so now we're at the end of this and once again we're at a balancing of factors is that what you would say as a lot of living test now that you would then have to consider this new position because now there is a copyright infringement and the question becomes one factor is do we need the nine in order to enforce a prospect of injunction  is it appropriate to put the nine mouth they are in light of the fact that you're sad that the relief ordered has been completely fulfilled and there's nothing else to process where we are at the end and now the court has to look at all those factors again yes but i would remind the court procedurally what happened here the court proposed not to issue an injunction to issue the destructive order and not and to maintain the person's  invite limit yes right meaning the destruction or destroying the writings which are destroying the things which it turns out he had destroyed years ago and indicated that the court was not inclined to disclose the name under those circumstances plaintiff at that point chose essentially to reiterate its entire summary judgment opposition demanding an injunction that's the choice they made we demand an injunction and that injunction must issue in the name of the defendant in order so that we can enforce the injunction that we're to get and the court basically said well ok if that's what you've got in your twenty five pages of briefing as to what i should do at this stage i'm going to stick with my initial dissent terminations provide a new argument to explain what would be necessary  i mean i think that would have been the joint oh just that there has to be a balance at every session it was the court rider was the court the court was correct the court was correct the court correct in two for two reasons kurt correct because having failed to issue any injunctive relief it was an appropriate balance to then say the collateral the collateral effect of stripping this person present an image is not warranted and second because the court i think in the event that she had issued any relief for example if the destruction order had been warranted was in time to say this is a relatively minor matter so small that i'm satisfied that it satisfies justice etc etc under my injunctive powers to order that he do it and that he's i've received you know a declaration under penalty of perjury that he's done so and i'm satisfied that justice has been done and that no further stripping is warranted if at that point at that point in the briefing the team had wished to further emphasize the public interest in knowing who this person is they could have done so although i think the court quite rightly felt that you know there's a public interest was served in that this is not it's not like it's not like knowing who are sex offenders in your neighborhood or knowing who a felon is who would therefore not be able to vote or something else this is a relatively minor offense for which congress is given a very small scheme of remedies and the under those postures usually on motions to dismiss often a motion to dismiss in a different state than the case is the state where the underlying case is proceeding moreover usually and there are any number of you know a c l u nonprofit w appear here because the subpoena is being fought in california or tennessee or wherever in the cases another state or the defendant shows up and says i moved to quash the subpoena and the defendant doesn't offer to defend especially because in all the other cases the defendant didn't do it defendant did he would just show up and court say i'm willing to defend this case anonymously if you wish to find out my identity let's go through discovery etc so the procedural posture here is rear  living case pointed out defendant showed up voluntarily they couldn't find out who he was they sent his lawyer a letter saying will he show up in court and i said yes we'll accept service and we will show up and we will defend all these other cases where there where they do it on an interim basis someone's is the person has specially appeared either either a third party defense that person's rights or nonprofit friend is right or the person specially appears on a motion to quash says i want to quash all of these cases have been decided on the basis that a prime official case wasn't shown ok so at that stage the case was over the cases that proceed to trial are rare because they usually don't arise in a situation in which the defendant has shown up in court and was willing to defend the i'm not going to argue you haven't served the case yet all except service and i'll show up and out of than my client what my client did that's a very different posture and that's why this is an unusual situation but the test that your honour's have to apply and i'd argue that a flexible test be revisited several times that that's flexible to this is the appropriate that's the but that's that's your argument there's no case law to support it agree i agree it's a very important case for that reason and thank you starting off we're just starting up where he left off the reason all these balancing tests were at the preliminary stages because the test is whether the plan of can establish in some cases a prime a fish a case sometimes it's can you survive summary judgment once it's determined that the plaintiff can then the identities revealed so the balancing test here what case do you have that says that the of the at the the litigation begins the plaintiffs nine must be for you you know the litigation goes on you don't you're you're moving through a now you're at this and joint it seems to me we have no case on either side what we've got  is a request that this court has deigned by balancing factors to be unnecessary and so i'm looking for cases where a court says yes if you win about a little bit different in some issue and that's why you raise the open records which was smart on the open records is an issue and it does need to be considered but what this judge did was it but the judge balanced the rights of this anonymous defendant and compared it to the right so what does the public need is there a reason for the public to know because there's no question there that you have some reason to want to know but the balancing kind of against and i'm asking you if you have a case it would not allow a balancing to be undertaken i think all of them say that i like to address it in a couple ways first the court did the balancing as it should in the beginning at the initial stage when it was a possibility in the courts all the own words and the possibility the da would ultimately prevail upon his fair use defense that's the stage at which she decided not to allow these my client to get the identity and then she went on to say at that early stage of course should plaintiff ultimately prevail in this matter those identity will be revealed in the court's judgment  grant of relief and she changed her mind probably should change would you explain why and really it's it's her it's her burden or her duty to explain why is she in restricting access she knew to search for specific findings and conclusions which don't close proceedings we don't keep things and then of us unless there's a really good reason and that the only time that been applied in this context is during discovery prejudgment you're not saying that there is some other case out there that says under these circumstances you get to know what the end of the case no other than there's a very good reason  that is under these balancing tests you're judging the strength of the plaintiff's case and once there's a judgment we couldn't possibly have a stronger case it's an on appeal judgment so all of the weight is on our side meanwhile the other thing to balance is does and if you had a judgment to enforce let's say you had to collect money against him you really have a strong argument you've got a revealing he's got to pay me money or i or i have a very strict prospect  injunction and i've got to be able to enforce it you've got to give me his name but that's not what we have here and so i'm trying to figure out and i think there's just no no clear law that says you cannot or you must so the question becomes how do you apply this balancing in did this court do it of appropriately because you have both know if this in these cases where people have come forward to defame and anonymously if in the end they cannot keep themselves anonymous they will not come forward to defend anonymously they will say to you come find me and you already know that you can't find them because you couldn't find him in this case so look so we're in a new scenario where there's an ability to judicata right but the question is how do you handle the air and resolution that ride and i guess i would just like to say if you've got a case that tells me how to handle being in resolution i'm willing to hear it but i don't think there is one but i agree there's no case that has i guess i'm trying to say is there's a good reason for that and the balancing so heavily favors and a plaintiff who has been successful that there's it's a perfunctory balancing a best it doesn't even make any sense once there's been a judgment and i'd like to also point out that it seems like the defendant here is trying to argue for some sort of special status or special class because he happens to be a blogger and i don't think this court's prepared to allow an entire class of people otherwise everybody should blog everybody should infringe anonymously without any repercussions and they have some special status to not have their their violent acts end up with a judge with their name on all of us engage in protected speech every day that doesn't mean that if we do engage in unprotected speech that we can remain anonymous when when the judgment comes out that's just doesn't make any sense and in this case particularly  know my client has a right to know even if and i think the court does believe it entered injunction but even if it didn't you know my client has a right to know that this person to keep an eye out for this person in case he does do it again with  her or an injunction you know we have a right to know whether he did it again because she has a kid will be an even bigger problem well you could say the same thing i guess about the judgment that if you know if there was a pretrial order protecting the anonymity and there's a verdict in the defendant comes in on the day of the verdict and hands over a chat you know there's no reason to know a defendant's identity or something you know i mean that would be assuming that would be getting rid of the presumption of open court records and again it's a high burden to overcome that presumption and is the court here expressly put the burden on my client to show it was necessary but that's not the test there's a high burden of overcoming the presumption of open chords and it's not my burden to show that i have a right to it absent compelling circumstances and where the