Digital Music News Officially Responds to Grooveshark’s Subpoena Demands

On January 15th, Digital Music News was officially served with a wide-ranging subpoena from attorneys for Grooveshark parent company Escape Media Group.

Today, we officially responded to Grooveshark’s army of attorneys via email, Fedex letters, and this posting.

______________

John J. Rosenberg, Esq.
Matthew H. Giger, Esq.
Brett T. Perala, Esq.
Rosenberg & Giger, P.C.
488 Madison Avenue, 10th Floor
New York, NY 10022
(p) (212) 705-4826
(f) (212) 593-9175
[email protected]

[Attorneys for Escape Media Group]

Edwin McPherson, Esq.
Pierre B. Pine, Esq.
McPherson Rane LLP
1801 Century Park East, 24th Floor
Los Angeles, CA 90067
(p) (310) 553-8833
(f) (310) 553-9233
[email protected]

[Attorneys for Escape Media Group, Inc.]

cc:

Andrew H. Bart, Esq.
Gianni P. Servodidio, Esq.
Joseph J. McFadden, Esq.
Jenner & Block LLP
919 Third Avenue, 37th Floor
New York, NY 10022
(p) (212) 891-1606
(f) 212-891-1699
[email protected]

[Attorneys for UMG Recordings, Inc.]

Re:  UMG Recordings, Inc. v.  Escape Media Group

Dear Messrs. Pine, McPherson, Rosenberg, Geiger, & Perala:

We recently received your lengthy subpoena against Digital Music News concerning your case pending in a New York State court.  We vigorously object to this subpoena on a number of grounds, which I will detail in this response letter.  Undoubtedly you are working to advance your client’s interests in this civil lawsuit, however I believe your efforts disregard basic details about how we handle this sort of information.  And at worst, your efforts could have the side effect of undermining our journalistic freedoms and those of other publications.

Digital Music News is just a small enterprise, one committed to serving the relatively small industry in which your client, Escape Media Group and its division, Grooveshark, hopes to thrive.  By contrast, my research suggests that you and your colleagues are among the most expensive and talented lawyers in theworld, with very large and powerful clients.  Edwin McPherson, for example, is a celebrated attorney who counts Lindsay Lohan among his clientele, among other celebrities.

We are not celebrities, a heavily-financed startup, or a major corporation.  But with limited resources, we have established ourselves as a top music industry publication, and we deserve to be respected for that.  We are read – and for better or for worse, often scrutinized – by the largest companies and most important executives in this industry.  We may be a small publication, but we refuse to be intimidated.  In turn, we expect people who support journalistic freedoms to stand with us, and we also expect to successfully defend our rights in this situation.

That said, we think that your expansive subpoena is burdensome and unfair, and to top it off, requests a response within an unreasonably short time.  To review, the lengthy subpoena requests include the following:

(i) Any and all correspondence or other communications between DMN and UMG concerning Escape, Grooveshark or the Article.

(ii) Any and all documents concerning the correspondence or other communications described in the immediately preceding request.

(iii) Any and all documents concerning the identity of the First Anonymous Commenter, including, without limitation, that person’s name, address, telephone number and e-mail address, and the IP Address and ISP associated with that person, as well as any other information that would assist Escape in ascertaining the identity of that person and/or the geographic location from which that person transmitted to DMN the written comments described in Definition G, above.

(iv) Any and all documents concerning the identity of the Second Anonymous Commenter (to the extent that person is, or may be, someone different than the First Anonymous Commenter), including, without limitation, that person’s name, address, telephone number, and e-mail address, and the IP address and ISP association with that person, as well as any other information that would assist Escape in ascertaining the identity of that person and/or the geographic location from which that person transmitted to DMN the written comments described in Definition H, above.

We ask that you promptly withdraw this subpoena for the reasons below, and promptly inform us.  On a very practical level, there are a few points about the subpoena that you should already be aware of, or might have ascertained had you communicated even briefly with me prior to drafting this extensive paperwork:

(1) Digital Music News does not retain records related to anonymous comments for more than 24-48 hours after the comment was published.  In fact, we typically expunge all data related to them prior to 24 hours.  Given that this whistleblower or “Anonymous Commenter,” who only identifies himself/herself as a Grooveshark employee, left a comment in mid-October of 2011, there is no chance that we have retained any information outside of that which is viewable by the entire world.

The reason why we immediately expunge such data is twofold.  One is that we find this information to be superfluous and unnecessary, and a waste of server space and storage (which costs money to maintain).  But more importantly, we flush this data to prevent exactly this type of over-reaching intrusion that your subpoena seeks.  It is a long-standing privacy policy of ours, one that precedes any and all legal action from your firms.

(2) Our privacy policy is a public one, and a consistent policy.  If you read our statement published in Digital Music News or had even asked by email, you would understand that the discovery request you are making goes beyond Digital Music News’ regularly maintained records.

(3) I expect that this will settle the matter, though I should also address the request for access to any communication between Digital Music News and Universal Music Group.  I assume that you are seeking information directly from UMG, who is actively suing you, regarding this whistleblower.  That makes it unnecessary to inappropriately harass Digital Music News for the same information.

(4) Those critical and practical points aside, I should also mention some details about the values that guide our publication.

I started Digital Music News several years ago with the intention of creating a publication that not only reported on the music industry, but also helped to shape its development as well.  While pushing towards this goal, I’ve been incredibly lucky to live and work in a country that has protected our journalistic freedoms, allowed open information and discourse, and supported an incredibly wide range of opinion and dialogue.  These are freedoms that the United States – and my own relatives – have fought for centuries to maintain, and not freedoms enjoyed in countries like Afghanistan, Iraq, or China.

I do not take these freedoms for granted, and I am thankful for the liberties that have allowed me to create the publication that I envisioned.  Digital Music News has been a team effort, with an entire industry contributing to this project.  Part of our success involves embracing the wide body of information offered by the thousands of professional executives, performing musicians, and experts working in this space every day, while offering them protections to facilitate the safe and unfettered access to this information.  Many times, information shared on our site can only be shared anonymously – or not at all – but it is nonetheless critical to the executives that read us everyday, and they rely upon the insights and information that can only come from an open forum.  It is our core belief that these opinions and information must be shared as part of an open, free exchange.

These protections are a cornerstone of a free press and open society that we all enjoy in the United States, and the result for us has been a body of knowledge that is unrivaled and growing every day.  In fact, we count many executives from Escape Media Group as devoted readers, and I know this because many of them have told me this in person.

(5) I write to you as a journalist upset about inappropriate encroachments on Digital Music News’ journalistic rights, not as a lawyer.  I wonder, however, what your thoughts might be about some information that I find to be easily available through Google or other search engines.   For example, in California, where Digital Music News is located, you can find posted on the internet a discussion of the 2006 California Court of Appeals case  O’Grady v. Superior Court.

I hope you will take a look at  http://www.rcfp.org/first-amendment-handbook/4-confidential-sources-and-information/internet-issues-reporters-obligation, which contains the following:

“For example, the California Court of Appeals in 2006 interpreted the term ‘magazine or other periodical publication’ in the state’s Shield Law to include two websites devoted to news and information about Apple Macintosh computers and related products. In allowing the defendant-bloggers to invoke the shield law as protection from compelled disclosure of the identities of anonymous sources who leaked confidential trade secrets about soon-to-be-released Apple products, the court concluded that the online publishers’ activities “constitute[d] the gathering and dissemination of news, as that phrase must be understood and applied under our shield law.”

The cite for the case is  O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006)

The O’Grady case is also discussed in a 2010 article found at http://www.tandfonline.com/doi/pdf/10.1080/08838151.2010.519809  The article is called ‘Blogging and Journalism: Extending Shield Law Protection to New Media Forms,’ by Sharon Docter Ph.D. and J.D.

I presume that as a lawyer and officer of the court you have some idea in mind that suggests that journalists like me lack legal shield rights, which differs from what I have found.  If you plan to go forward with your subpoena request I would like to know why you think it is justified, other than that you think you can bully us at Digital Music News into giving up our rights as journalists.

Please let me know promptly whether or not you are pressing forward with the subpoena, so we can consider our next steps.

Sincerely,

Paul Resnikoff

Publisher & Founder
Digital Music News