Today, We Face Grooveshark In LA Superior Court. Wish Us Luck

Update, 2 pm PCT: Just stepped out of the courtroom.

The judge did not quash (ie, toss) the subpoena as we’d hoped; I’ll have a full statement ahead.  /paul

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Starting this morning in a Los Angeles Superior Courthouse, Digital Music News will be defending itself against an ongoing and forceful subpoena attempt by Grooveshark (aka, Escape Media). We simply cannot comply with this subpoena, because we do not retain IP address information related to commenters after a short period.  Beyond that, we feel that Grooveshark is trampling on important First Amendment, Shield Law, and privacy protections with this action.

Which brings us to where we are now.  For those just tuning in, this all started with an anonymous comment on Digital Music News back in October.  The commenter, claiming to be a Grooveshark employee, described institutionalized instructions for copyright infringement.  That is, by specifically instructing employees to fill content gaps on the Grooveshark app by uploading popular, copyrighted works.  Grooveshark now wants to identify the source of this comment.

Along the way, we’ve received an incredibly strong showing of support.  This could drag into a very long fight, and we’re proud to have powerful allies like Mike Masnick of Techdirt and Bruce Houghton of Hypebot in this battle.  We’ve also received behind-the-scenes support from some of the most powerful journalists and bloggers in the space, and incredible support from almost every corner of the industry.

We’ve also attracting some very powerful legal allies, which guarantees that we can now offer the strongest defense possible in this matter.  That includes Public Citizen attorney Paul Alan Levy, a top expert in exactly this area and now, our lead litigator.  Levy has immense amounts of experience, including involvement in scores of US Court of Appeals cases, and nearly a dozen Supreme Court cases.

Most relevant to our case, Levy has litigated cases in state and federal courts throughout the country about the identification of anonymous internet speakers.  In fact, his amicus curiae brief in Dendrite v. Doe, whose approach was adopted by New Jersey’s Superior Court Appellate Division, has become a model for other cases.

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Levy is challenging the Grooveshark subpoena on a number of fronts. “We decided to represent [Digital Music News] because it seemed to us that the argued basis for the subpoena was transparently spurious,” Levy recently blogged.  “To be sure, the anonymous posts said things about Escape Media that could damage its reputation, and could well be defamatory if false.  But Escape Media wasn’t actually suing for defamation (and its reply brief seems to step away from the desire to sue for defamation as a ground for the subpoena).  And anonymous posts are not admissible evidence in the underlying infringement lawsuits; so showing the falsity of the anonymous comments would not, in itself, aid the defense of the lawsuit.  Indeed, the truth or falsity of claims about what Escape Media tells its employees to do, and what those employees actually do, can only be determined through discovery of those employees and, perhaps, a careful review of Escape Media’s own documents (and computers).”

That’s just one of several arguments shaped by Levy.  “A second argument against the discovery is that the anonymous comments are the blogger’s sources,” Levy continues.  “I recently argued as amicus curiae in a Doe case in which the newspaper also made an argument under Indiana’s shield law; although our brief was only on the First Amendment issue, I confess that I was a bit skeptical of the shield argument based on the facts of the case and the language of the Indiana statute. But our client in this case presents somewhat different facts, because he regularly engages with his anonymous commenters by joining the discussion in the comments, and he uses the comments as a basis for stories.  And he has reason to fear that if the commenters are readily identified, his access to comments will dry up.  So the facts that he never learns the identity of the commenters, and that he allows the commenters to publish without intermediation, are consistent with their being ‘sources’ in the usual sense of the term.  We decided to embrace the California Shield Law argument in this case.

“But the most interesting aspect of this case still lies a bit below the surface.  Our client allows his servers to record the IP address of anonymous commenters, but promptly discards the information because he has no business reason to retain it, has limited storage space and, indeed, wants to keep his sources’ identities confidential.  So we have argued that the subpoena motion is moot.  Escape Media, though, is arguing that deleted data doesn’t really disappear, and seems to be laying the groundwork for an attempt to seize our client’s computers to conduct a forensic search for any identifying information that it can find.”

“Somehow the prospect of letting a company search a journalist’s files — especially the files of a journalist that it has publicly placed on its enemies’ list (for example, here and here) in the hopes of finding useful deleted information is a chilling one.”

See you in court, Grooveshark.

23 Responses

  1. balbers

    Have no fear, Paul. The law is on your side. As long as the judge’s head is on straight, you’ll be fine

    • visiteur

      Paul, when you say “We simply cannot comply with this subpoena”, I believe that you are making a statement that is not yours to make. In the business of law, you either accept or not accept a subpoena and then during the process, the court decides if you can comply or not. Am I right?

      I still favor DMN accepting the subpoena:

      -less time and energy commitment from DMN

      -Grooveshark wouldn’t get any information since, according to Paul, DMN doesn’t hold the IP addresses of commenters for long

      I can see that Paul wouldn’t want to comply with the subpoena with the goal of establihing a precedent that DMN doesn’t accept subpoenas involving the sharing of commenter information.

      • Visitor

        You’re missing the point. The information that has been subpeonad does not exist.

        • visiteur

          Well, we don’t know if it exists or it doesn’t , nor is it our duty to find out, it’s the court’s duty to make that inquiry and the court makes that decision through the subpoena process.

          What Paul states is one of the points I raised above and is the fact that regardless of wether the information exists or doesn’t exist, he is in this pickle because he wants to protect DMN’s visitor/commenter ‘s information and that is a very noble cause

      • paul

        @visiteur

        I’ve definitely pondered the issues you’ve raised, because these battles are extremely time-consuming and expensive, not to mention disruptive to the core delivery of the site potentially. So right, all time focused on this is legal issue is time away from writing articles, researching, strategizing, or making deals, etc.

        The broader point is what precedent this would set. It would essentially say, anonymous commenters are not protected by Shield Law, First Amendment, or other privacy protections. If I let that happen, I am essentially allowing that precedent to happen – and creating complications and setbacks for the broader journalistic community (not to mention myself).

        I don’t want to do that, so that’s why I’m fighting.

        /paul

  2. balbers

    Have no fear, Paul. The law is on your side. As long as the judge’s head is on straight, you’ll be fine.

  3. Visitor

    Wish you all the best Paul. Hopefully Grooveshark are done and dusted by the end of this year

  4. starp

    Paul,

    Makes no difference if your right or wrong.

    Grooveshark cannot afford the legal fees they are bleeding and the employee morals are at zero. They are fireing employees daily.

    They cannot raise any more capital with the current managment and lets face it who would want to invest.

    In essence they are broke its just a matter of time for the legal fees to destroy them like it did MP3 Tunes.

    Conclusion Is that Grooveshark will be case law by years end.

    Sup

  5. @xsaiki

    Grooveshark, you know I love you, here you’re out of line.

  6. @doilooksnob

    Il y a des gens qui apparemment n’aiment pas du tout Grooveshark…

  7. Likenem

    Wow, remind me not to F–K with Digital Music News next time. YEt another dumb move by Grooveshark

  8. sometimes y

    Grooveshark is eating itself alive everyone, let’s watch the Gladiator self destruction

    Sue DMN… now there’s an awesome strategic idea.

  9. Its over

    See you later kids. Fool yourself that this is just another battle in the long war (ive heard this first hand from so many of you), but its over. Good luck with new ventures when this one finally crumbles, i have a feeling you’ll need it…

    • Kinda right

      The Grooveshark stories on DMN are closer to tabloid articles than investigative-hard-hitting-news stories. but still, Paul is in the right with the arguments above.

      I support you Paul.

    • Visitor

      you should spend more time looking for work and less time reading blogs.

  10. billeeto

    You picked a great advocate for this case. Hope it goes your way Paul.

  11. paul

    Just a quick update, everyone. I just stepped out of the courtrooom.

    Judge Richard Stone decided not to quash the subpoena, which means he is not tossing it out. So we continue with the fight; I’ll have lots more detail on where we stand and next steps. I’ll have a broader statement prepared soon.

    /paul