Skip Page Banner  
E-COMMERCE AND TECH LAW
BLOG

 

Thursday, April 29, 2010

File-Sharers Have Little But Not Zero Privacy

by Thomas O'Toole

RSS

A shred of victory for online privacy in the Second Circuit's otherwise adverse opinion today in Arista Records LLC v. Doe 3, No. 09-905 (2d Cir., April 29, 2010). The case was about how specific a copyright owner's complaint must be in order to overcome an unknown file-sharer's First Amendment right to anonymity. For my lawyer readers, this case is about the meaning of Twombly/Iqbal for copyright infringement complaints.

Near the very end of the opinion, however, the Second Circuit turned to the lower court's stingy assessment of the file-sharer's privacy rights. The magistrate judge had ruled that a file-sharer accused of copyright infringement defendants lacked "any pretext of privacy" because they publicly shared a folder of information on their computers:

Lastly, as precedents have advised us, the Doe Defendants have a minimal expectation of privacy, especially when they allegedly engaged in P2P network sharing. Conceptually, the notion of allowing others to have access to one’s database by virtue of the Internet in order to pluck from a computer information and data that the computer owner or user wishes to share renders void any pretext of privacy.

The Second Circuit commented that the magistrate judge was confused about the nature of the privacy right asserted by the file-sharer. There is a difference, the court said, between having a privacy right in data that is publicly shared and having a privacy right in one's identity. Publicly sharing files might implicate the former privacy interest, but not the latter.

The difference, it turns out, is the difference between slim and none. In the words of the court, "[W]e regard Doe 3's expectation of privacy for sharing copyrighted music through an online file-sharing network as simply insufficient to permit him to avoid having to defend against a claim of copyright infringement."
Subscription RequiredAll BNA publications are subscription-based and require an account. If you are a subscriber to the BNA publication and signed-in, you will automatically have access to the story. If you are not a subscriber, you will need to sign-up for a trial subscription.

You must Sign In or Register to post a comment.

Comments (0)