It started with an anonymous comment on Digital Music News. Nearly three years later, DMN is still fighting a legal battle against Grooveshark and its parent, Escape Media Group, to protect any examination or intrusion of our servers. The case is now being heard by the Court of Appeal of the State of California.
The basics of the battle are this: back in 2011, a person anonymously claiming to be a Grooveshark employee alleged serious copyright infringement by the company in a comment on Digital Music News. The comment accused Grooveshark executives of forcing employees to upload copyrighted, unlicensed works onto Grooveshark’s servers to meet prescribed quotas. If true, these mandated quotas would constitute a blatant violation of federal copyright law, as the Digital Millennium Copyright Act (DMCA) only protects companies that have no express knowledge or participation in the uploading of infringing works.
The anonymous comment was mentioned in the legal battle between Grooveshark and the major recording labels, with Grooveshark ‘under attack’ in both state and federal jurisdiction. As Universal Music Group led what has been termed a ‘legal jihad,’ Grooveshark demanded that Digital Music News reveal any identifying information about the anonymous commenter, even though that information had already been deleted, overwritten and virtually impossible to locate.
Grooveshark claimed that Digital Music News might be lying, and demanded an expensive mirroring process while freezing DMN’s server clusters for several weeks as the parties argued in California Superior Court in Los Angeles. Ultimately, District Court Judge Richard Stone sided with Escape, and Digital Music News complied with court orders by copying its virtual servers onto separate hardware pending the results of an appeal.
Nothing to date has been examined or otherwise opened to outside parties.
Last week, a panel of appeals judges heard opening arguments in the matter, with Public Citizen Litigation Group attorney Paul Alan Levy continuing to represent Digital Music News along with Charles A. Bird of McKenna Long & Aldridge LLP. Levy argued that Digital Music News had been perfectly compliant with Grooveshark’s discovery demands, and should not be subject to prolonged and expensive discovery processes typically reserved for companies found destroying or otherwise hiding (ie, ‘spoliating’) critical data (ironically, Universal Music Group has accused Grooveshark of exactly this behavior).
Levy has declared from the beginning that if Digital Music News is forced to open its servers to an outside party, and endure endless hours of exhaustive examination that go beyond any reasonable standard, this case will open a myriad of other, similar demands. Journalists and other parties that are not central to ongoing litigation could face massive disruption and be forced to cater to unreasonable discovery and subpoena demands, especially in the digital context. This would not only greatly affect their ability to conduct normal business, but dangerously stretch the standards of what should constitute reasonable discovery.
“If this order is affirmed, we will see more,” Levy told the multi-judge panel.
That raised some concern among the appellate judges that Levy was seeking an overly-broad, ‘black letter’ ruling instead of a narrower decision directly related to the case. Levy replied that while a broader ruling was favorable, he would certainly accept a narrower victory.
The Appellate forum isn’t for the weak-stomached barrister: during the deliberations, the four-panel cluster of judges frequently interrupted and undermined well-crafted legal arguments, though the tougher cross-examinations fell upon Grooveshark attorney John Rosenberg of Rosenberg & Giger, PC. Rosenberg questioned whether anonymous voices on the internet should have the ability to ‘wreak havoc and defame individuals and businesses with impunity,’ a situation that Rosenberg felt superseded First Amendment issues or journalist protection.
That raised a question of why Grooveshark hasn’t filed a ‘John Doe’ lawsuit against the alleged defamer, though the Justices seemed more concerned with jurisdiction and legal trickery. Associate Justice Victoria Gerrard Chaney sharply questioned whether Rosenberg was using the California court system to potentially ‘backdoor’ a subpoena that would be used in a federal case. Rosenberg strongly argued that this was not the case, and presented circumstantial details to back those claims, though Chaney seemed somewhat unsatisfied.
Case Detail: In Matter Of Subpoena In UMG Recordings v. Digital Music News LLC, case number B242700. Court of Appeal of the State of California, Second Appellate District.