The Right To Be Left Alone

Most law students briefly study invasion of privacy in their first-year torts class. It is a curious tort from which several causes of action arise, some of which are not intuitive. The basic concept is that all persons have an inherent right to be left alone.

Digital Music News, LLC wanted just that. Digital publishes an online newsletter that permits readers to post comments to its stories. One comment (posted in response to a story about infringement litigation between Universal Music Group and Escape Media) stated that Escape routinely directed employees to upload infringing music to its servers, and to ignore complaints to remove it. The commenter claimed to be an Escape employee.

Escape then served a subpoena upon Digital to discover the identity of the commenter. Digital refused and unsuccessfully petitioned the trial court to quash it. However, the appellate court overturned and said anonymous speech is protected by the right to privacy. It also said the identity of the commenter was not relevant to Escape’s litigation with UMG.

The 16-page opinion is well-written and informative. Here are some points I found to be interesting:

  • The DMCA safe-harbor provision does not apply to common law claims for infringement;
  • Anonymous speech implicates 1st Amendment and Right to Privacy principles; and
  • Discovery is designed to facilitate litgation, not to wage war.

Here’s the opinion in .pdf format: AnonymousSpeech.

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