The following statement is from Paul Alan Levy, attorney for Public Citizen and our lead litigator against Grooveshark's ongoing and aggressive attempts to subpoena Digital Music News. A more complete statement that includes background on this case has been posted on the Consumer Law and Policy Blog, here.
"In papers filed last week, we argued that enforcement of Grooveshark's subpoena would contravene both the First Amendment and California's Shield Law. After we filed our papers, Escape Media submitted an affidavit showing that the anonymous comment contained false statements.
"Despite this showing, we felt that the standards for identifying anonymous speakers were not met in other respects, so we argued the motion on Tuesday. Superior Court Judge Richard Stone ordered the identity produced; he indicated that he was troubled in several respects, and considered it a close case, but in the end ruled against Digital Music News. We disagree with the judge's analysis because he appears to have applied the wrong legal standard, but until there is a transcript of the oral ruling, I am reluctant to discuss his reasoning. Digital Music News plans to seek appellate review, and in the meantime the judge indicated that the identification order will be stayed but that he expects any identifying information be preserved pending appellate review.
"This raises complications of its own. Digital Music News puts identifying information (that is, the IP address of each poster) in a temporary log file that is kept only for a few days, and then overwritten with other data. Digital Music News looked for the log file when Escape Media first complained about the comment, several weeks after the fact, and confirmed that it no longer existed. Although Digital Music News told Escape about this overwriting practice as soon as it received a subpoena (in January), Escape has pursued enforcement of the subpoena on the theory that the overwritten data may still exist in some form on Digital Music News' servers.
"Given the extent of the over-writing that had occurred from October until the judge's ruling, Digital Music News is very skeptical that the data still exists in any retrievable form, but of course it needs to comply with the data-preservation requirement.
"The imposition of data preservation requirements on a journalist who is not a party to the litigation raises questions apart from the merits of the order. Journalists need to be able to discard data when they no longer have any of their own use for it. Yes, "the public has a claim to every man’s evidence," but don’t members of the public who are not involved in litigation have the right to discard information despite the fact that it might turn out to be useful evidence for somebody else’s case? Does the public have a claim to heroic efforts on every man’s part? Shouldn’t there be higher standards for subpoenas demanding intrusive searches for discarded data in the hands of third parties?
"To what extent does society have any entitlement to make journalists in particular take heroic measures, such as searching the nooks and crannies of their computer equipment for fragments of discarded data? The judge was sensitive to the fact that our client here is a journalist, telling Escape Media that he was not prepared to allow it to make any general search of Digital Music News’ computers. But an issue that we may have to pursue on appeal is whether a journalist should ever have to undertake such drastic preservation efforts in aid of a lawsuit in which he is not involved, particularly given the relative unlikelihood that fragments of identifying data remain on his computers somewhere.
"Indeed, the problem is
broader than just journalists. Companies often keep log files with
respect to server visits (and hosted comments), but there is little business
justification for keeping those logs forever; so generally speaking they are
discarded after a period of time (EFF's best practices recommendations are worth a look in
this regard). Does the mere act of discarding log files set a company up
for the possibility of a demand for forensic examination of the underlying
servers, in the hope that some fragment of the data might be recovered? In this regard, the trial court's order has
chilling implications for other California companies, even beyond the issue of
"Issues of how to preserve the data remain to be decided. This is not like just leaving one of your file cabinets untouched for a period of time; it is not even as easy as making sure you don't delete any of your email. Preserving the web site while creating a copy of the underlying servers is a complicated process, requiring the services of a forensic specialist, and the cost could be substantial. The estimates that we have been given are well into the five figures; but even the cost of several thousand dollars would be an enormous imposition on this small company.
"By chance, on my flight home I was sitting next to a computer forensics specialist with a large consulting company; he told me about his experience seeing small companies driven out of business by trying to cope with the expense of data preservation. We are also struggling with the question whether, given the manner in which the blog is hosted, it might have to be taken offline for the copying of the physical machines to be done, or whether the process of copying poses a significant risk of degrading the performance of the site.
"It remains to be seen on what heroic methods Escape Media plans to insist, whether it is prepared to foot the bills for preservation, and what the judge will ultimately order.
"We will be back in court on June 1 to address the remaining issues that need to be decided before we go to the Court of Appeal.
Muzic Friday, May 18, 2012
My guess is that Grooveshark will try to expose collusion and back door deals at the upper echelons, eventually suing the majors.Good luck
dgtlmktg Friday, May 18, 2012
I am happy for Grooveshark, they needed a win.
A Shark of any other name Friday, May 18, 2012
At the very least, Grooveshark (or their representation) should have to use their stolen artist's money to pay for the forensics if it comes to that. That's quite an unfair burden to put on a small journalists' blog... let alone the questions of legality regarding the Shield Law and other concerns.
All the best for a sane ruling in June!
@mr_trick Friday, May 18, 2012
Hang in there Paul Saturday, May 19, 2012
Some unbelievable morons commenting here. They piss on the proprietor of the blog they use daily, and if they thought about it, they would not want their anonymity was pierced by a nosy beligerant like Groove Shark, who is out to shut this place down. ... doushbags is the term that comes to mind. Power to Paul.
Sharky and the Funky Fins Monday, May 21, 2012
I second that motion.
@SheerZed Saturday, May 19, 2012
I'm very sorry to read this Paul. I wish you the very best of luck in June.
WILL Saturday, May 19, 2012
Paul, I imagine you've already thought this out and been advised before my offering, but isn't only allowing comments through Facebook or email much like Techcrunch the best solution? If someone wants to post comments then their identity should be made known, especially as there are sometimes abusive ones in response to others which can't have failed to escape your notice.
It'd likely also appease the concerns of potentially bigger advertisers who probably want to see more structure around this area before their brand image is associated with the site.
Anonymity and pseudonymity are Saturday, May 19, 2012
In certain cases, forcing people to reveal their identity is appropriate--but certainly not in a journalistic use case. If whistleblowers cannot have a reasonable expectation of privacy to defend against recrimination, then we don't live in that free of a society after all.
The Ghost of Morris Levy Saturday, May 19, 2012
I totally agree. The comment section of this site has really ruined it for me. It's really destroyed any last drop of integrity that Paul once had. To call this dribble journalism is insulting.
Myles na Gopaleen Saturday, May 19, 2012
I agree, real journalists never use anonymous sources and any media outlet that reports news never allows anonymous comments and always cooperates with subpoena requests.
King of the Plookers Saturday, May 19, 2012
Hey Morris, we really miss ya!!
Bald Headed John
Walter Yetnikoff Saturday, May 19, 2012
Bald headed John! You mensch! I'm gettin back in the game and about to purchase Warner (Mo never liked me much). Paul keep this on the down low, dont need anymore lawsuits.
Moris Levy Saturday, May 19, 2012
Is secretly uploading copyrighted Chuck Berry tracks from the grave! Quick, somebody subpoena John Lennon!
Alan Freed Sunday, May 20, 2012
Ahmet Ertegon Sunday, May 20, 2012
Yer killin me guys
@HanahPeterson Saturday, May 19, 2012
Amazed that Grooveahark still has a heartbeat.
Adam Monday, May 21, 2012
This whole thing is like watching two retarded kids fight over a broken toy.
CLebLabs*TM Monday, May 21, 2012
The Digital Space is evolving as it should, with automated Cloud Computing, all things become possible for record keeping as well as tracking the past at 100 times cheaper than the present. Best of luck everone for June.
@cleblabs Tuesday, May 22, 2012
Digital Music News, has been a good source of information. Good luck for June.