Digital Music News Prevails Against Grooveshark In California Appeals Court…

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Grooveshark will not be permitted to search through Digital Music News’ servers after all, thanks to a reversal issued by the California Court of Appeals, Second Appellate District.  The Appellate opinion summarily dismantled a range of arguments concocted by Grooveshark and its parent, Escape Media Group, and ultimately nullified an earlier decision by the California Superior Court for the County of Los Angeles (ie, the trial court).

Most importantly, the court firmly declared that users have the right to anonymity on the internet, and that courts should take steps to protect that right.

That guiding and important principle, combined with serious problems in Grooveshark’s case, means that any earlier decisions granting subpoena access to Grooveshark will now be vacated.  Nothing on DMN will be opened to outside parties for inspection.

“The trial court is directed to vacate its order granting Escape’s petition to enforce the subpoena and to enter a new order denying the petition. The writ of supersedeas is dissolved. Digital is to recover its costs on appeal.”

The decision was bluntly unapologetic and lopsided, raising some questions about Grooveshark’s legal strategy (led by Rosenberg & Giger and McPherson Rane).  After a tough round of questioning during ORAL arguments in Los Angeles, the multi-judge panel found Grooveshark’s subpoena against Digital Music News to be flimsy on a number of grounds, including the all-important question of whether there was any evidence at all worth pursuing on Digital Music News’ servers.

“Escape’s need for the discovery is practically nonexistent.”

Appellate Court Decision, p. 15.

The legal battle between Grooveshark and Digital Music News revolved around a pair of anonymous comments, posted in late 2011.  The commenter, who claimed to be a Grooveshark employee but was only identified only as ‘Visitor,’ outlined a range of very serious copyright violations that were ordered by top executives at the company.  In essence, the ‘employee’ offered details that, if true, would have potentially destroyed Grooveshark’s DMCA-based copyright defense.

But since the subpoena battle with Digital Music News started, Grooveshark’s DMCA defense has been slapped down in a separate, New York State proceeding against Universal Music Group.  Which raises the question: why does information about that defense matter anymore?  “Escape’s DMCA defense was ordered stricken by the Appellate Division of the New York State Supreme Court, which held the defense immunizes a service provider only from federal copyright claims, not state common law claims such as those at issue here,” the Appellate decision stated.

“The defense therefore raises no currently disputed ‘fact that is of consequence to the determination of the action,’ rendering Visitor’s comments irrelevant.”

But even in the event that the DMCA question remained on the table (as in federal court), the judges questioned what purpose unearthing the identity of ‘Visitor’ would ultimately achieve.  After all, this is a comment on the internet, not an investigation of Escape’s servers or an incriminating email.  “Visitor said two things of consequence: (1) He/she is an Escape employee; and (2) Escape administrators encouraged employees to infringe on copyrights.

“Escape apparently believes disproving one or both of these out-of-court  claims would somehow disprove UMG’s allegations. We fail to see how.”

And why is Grooveshark leading a ruthless and expensive campaign to unearth the identity of a… blog commenter?  The judges didn’t miss the absurdity in front of them.  “Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indicium of reliability and little weight,” the decision continued.  “We will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.”

Disappointingly, the Appellate judges declined to address important questions related to the subpoenaing of deleted data.  Digital Music News had already deleted the data in question, and it is highly unlikely that it could have been recovered; at what point is it unreasonable to subject a company to extreme discovery?  That likely leaves the door open to more abuse: in his argument before the judges earlier this month, Digital Music News attorney Paul Alan Levy of Public Citizen Litigation Group warned that over-reaching forensic investigations would happen again, often against parties that have far fewer defenses.

But there was an important precedent related to online privacy.  In no uncertain terms, the Court placed great weight on the privacy of the commenter involved, and the all-important right to remain anonymous and free from reprisal.  “Even if Visitor’s identifying information was reasonably calculated to lead to admissible evidence, his or her right to privacy under the California Constitution would outweigh Escape’s need for the information,” the judges continued.  “‘The right to speak anonymously draws its strength from two separate constitutional wellsprings: the First Amendment’s freedom of speech and the right of privacy in article I, section 1 of the California Constitution.’ (Rancho Publications v. Superior Court, supra, 68 Cal.App.4th at pp. 1540-1541.) .

“The California Constitution provides that all people have a right of privacy.  This express right is broader than the implied federal right to privacy.”

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.

Digital Music News was represented by Public Citizen Litigation Group attorney Paul Alan Levy along with Charles A. Bird of McKenna Long & Aldridge LLP.  Grooveshark parent Escape Media Group was represented by John Rosenberg of Rosenberg & Giger along with Ed McPherson of McPherson Rane.  

The full decision is here.

19 Responses

  1. hippydog


    “Digital is to recover its costs on appeal.”

    Are you thinking of going after them?

    • Paul Resnikoff

      Yes, we will be recovering costs, and working through other details with Grooveshark’s counsel, Rosenberg & Giger and McPherson Rane. At this point, we are not sure if they will be pursuing an appeal with the California Supreme Court, that is still an option for them.

      • Moby


        can you now have grooveshark pull our stuff down, for which they pay nothing for?


        • don't be lazy

          Just spend 5 seconds online and learn how to send a DMCA notice. Why are you asking Paul for help? It’s just a simple template to edit and email to Grooveshark!

          • Paul Resnikoff

            There is some question whether Grooveshark is actually adhering to the DMCA rules or not. I personally have no knowledge either way. That’s for the courts to decide: Universal Music Group, the lead litigant against Grooveshark (in state but also federal where the DMCA firmly applies) argues that Grooveshark is not adhering properly.

            (incidentally, the anonymous comment most certainly declares that Grooveshark is not complying)

          • jedd

            It’s nearly impossible to do 100’s of DMCA takedowns.


          • FarePlay

            don’t be lazy:

            “Fifteen years later, online piracy is still operating under this flawed regulation that provides infringing sites with the DMCAʼs Safe Harbor provision. A Safe Harbor from which many pirate sites claim compliance by engaging in what is commonly referred to as whack- a-mole, a process where infringing sites comply by removing the identified file only to have it reposted almost immediately. I canʼt think of another instance where the innocent have to work so hard for justice and are ultimately denied it.”

  2. have a look

    Hey Paul, I think you might be interested in talking about this:


    Piracy website movie4k-to is now *boosted* by ~50% by Google, after Panda 4.0 rolled out.

    So much for DMCA notices having an effect on ranking…….

  3. TuneHunter

    Congratulations! More time to observe “the industry”.

  4. Rawcus

    I didn’t doubt it for a second!!!

    -Rawcus #WhitePeopleCrazy

  5. Anonymous

    Congrats, Paul!

    Great that the piracy industry won’t be allowed to censor the internet.

  6. Anonymous

    “In essence, the ‘employee’ offered details that, if true, would have potentially destroyed Grooveshark’s DMCA-based copyright defense”

    Let’s hope a similar whistleblower will step forward now and tell us the truth about Google’s industrialized DMCA abuse.

  7. FarePlay

    Nice work, Paul. For your sake I trust Grooveshark doesn’t pursue an appeal. One can only speculate the revenue Grooveshark has gained from advertising to pay their legal bills over the years.

  8. Jeff

    The use of the abbreviation “DMCA” prior to spelling-it-out makes the message cryptic to those not familiar with the topic, is grammatically erroneous and makes me wonder why it was so important to post these views on a public forum if clear communication standards were not also included.

  9. Rulf

    Does this have anything to do with why my Swingfish isn’t working???

  10. Someone

    Great that the piracy industry won’t be allowed to censor the internet.”
    Funniest sentence I’ve ever read. It couldn’t be more backwards & hypocritical. Firstly, “piracy industry”? lol
    Second, censoring the internet is exactly what DMCA notices do, among other things & the MAFIAA doesn’t care about how they do things, they have even admitted to using the excuse of child pornography as a means to censor others, even though it has been clearly explained to them that this actually hurts children, because hiding the problem doesn’t make it go away, in fact the more people are aware of it, the more likely the people performing these atrocities will be caught & people will become more aware of the issue alltogether. They have said they don’t care at all, as long as it means they can make sure to screw over people who aren’t giving them money, even though they have a ton already. I agree that smaller or unknown artists should have a means to be paid for their music, but most of it ends up in the pockets of the real criminals who rip them off daily because it’s their “job”. If artists would skip the middle man & offer music themselves in a manner in which people can choose to pay any amount, they would likely make more & keep it all. Assuming that people aren’t ever going to pay to support artists they love, well that’s just wrong & it’s highly pessimistic! A huge percentage of people who pirate don’t do it out of convenience or lack of willingness to pay, it’s about them not having money & why should they have to suffer for that, and not be allowed to enjoy the same music as others? Don’t they have it rough enough? Eventually people will realize that these groups are nothing but bullies trying to beat money out of every person they can, without a care for who they harm in the process. There’s obviously something entirely wrong when there are people put in jail for longer & treated worse than murders and rapists, just for literally SHARING things with each other. That is so backwards that it’s painful to even say or think. The fact people have gotten so stupid over this is a perfect example of why we as a species, are totally screwed.

    • SomeoneElse

      Wow….there is some great logic in there! Sidestepping the reference to child pornography, as it is irrelevant to a discussion about copyright infringement, and looking at the use of the (capitalised) word “sharing”, it is self-evident that an individual’s economic situation is no more an excuse for “sharing” an artist’s copyright protected creative output than it is for “sharing” the car, electronic goods or credit card of somebody else,without their consent. The fact it is far easier to do so does not change the legality or ethics. Sharing is when the owner of something gives it to someone else. Taking it from them is theft. And, for argument, let’s just say someone shared their car with you…would you assume that to mean “hey, please use my car, and also let any old random stranger also take it for a spin, and use it any way they see fit”?? If you want to hear music, but can’t afford it, try a radio, your own, or someone else’s (with their consent of course – which can be of the implied variety).