Cal. Litig. 2015, Volume 28, Number 2

Where First Amendment Internet Anonymity Rights Collide with Copyright

By Peter Afrasiabi

Peter Afrasiabi

Does the First Amendment allow Internet users to engage in acts of anonymous copyright infringement free from discovery of their identity? How do litigators on either side of this question engage in such discovery?

Perhaps not surprisingly, cases from around the country diverge, and cases within the Ninth Circuit conflict. The Ninth Circuit has not yet addressed copyright infringement anonymity rights, although it has established a framework that balances First Amendment anonymity rights with discovery rights. Navigating the case law is critical for practitioners seeking discovery from alleged anonymous infringers and for those defending against such efforts. It is likewise critical for practitioners seeking discovery in non-copyright cases where the actor is cloaked in anonymity because of the inherent privacy the Internet affords.

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