Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

LinkedIN

In a decision that has generated considerable controversy, a federal court in New York has held that the <a href="https://www.dailydot.com/debug/embed-tweet-copyright/" target="_blank" rel="noopener">popular practice of embedding tweets into websites and blogs can result in copyright infringement</a>. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.If <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2511" target="_blank" rel="noopener">legislation recently introduced in California</a> passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court <a href="http://www.globallegalpost.com/big-stories/canadian-claim-served-by-instagram-4026143/?utm_campaign=D1_06_02_18&utm_medium=email&utm_source=newsletter_d11" target="_blank" rel="noopener">granted the lawyer permission to serve process</a> by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened <a href="https://www.sociallyawareblog.com/2014/10/16/new-york-family-court-magistrate-allows-unprecedented-service-of-process-via-facebook-will-others-follow/" target="_blank" rel="noopener">back in 2014</a>.Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “<a href="https://www.sociallyawareblog.com/2014/01/29/keeping-privates-private-the-legal-landscape-of-revenge-porn/" target="_blank" rel="noopener">revenge porn</a>”—this <a href="https://www.wired.com/story/face-swap-porn-legal-limbo/" target="_blank" rel="noopener">fake porn is technically not a privacy issue</a>, and making it illegal could raise First Amendment issues.By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for <a href="https://www.cnn.com/2018/03/09/us/facebook-post-ex-husband-police-jail-trnd/index.html" target="_blank" rel="noopener">having her and her friend arrested and briefly jailed for posting on Facebook</a> about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because laws in those states restrict how companies can use biometric data.The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister Kylie Jenner tweeted her frustration with Snapchat’s recent redesign, the company’s market value decreased by $1.3 billion.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Social Links: Inline link to tweet with photo could constitute copyright infringement; proposed California legislation could restrict website operators’ efforts to have minors consent to terms of use

In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and 

Social Links: Inline link to tweet with photo could constitute copyright infringement; proposed California legislation could restrict website operators’ efforts to have minors consent to terms of use

In February the U.S Supreme Court heard oral arguments in <a href="http://www.scotusblog.com/wp-content/uploads/2017/07/17-2-opinion-below.pdf" target="_blank" rel="noopener">United States v. Microsoft</a>. At issue is Microsoft’s <a href="https://www.sociallyawareblog.com/2017/11/08/us-v-microsoft/" target="_blank" rel="noopener">challenge to a warrant issued by a U.S. court directing it to produce emails stored in Ireland</a>. With implications for government investigations, privacy law, and multi-national tech companies’ ability to compete globally, the case has attracted significant attention.Over the course of the oral arguments it became clear that rendering a decision in United States v. Microsoft would require the justices to choose between two less-than-satisfactory outcomes: denying the U.S. government access to necessary information, or potentially harming U.S. technology companies’ ability to operate globally.The conundrum the justices face is largely due to the fact that the 1986 law at issue, the Stored Communications Act (SCA), never envisioned the kind of complex, cross-border data storage practices of today.Find out more about the case and how recently introduced legislation known as the CLOUD Act could wind up superseding the Court’s decision in United States v. Microsoft by, among other things, clarifying the SCA’s applicability to foreign-stored data while also providing technology companies with a new vehicle for challenging certain orders that conflict with the laws of the country where data is stored.Read my <a href="https://www.wired.com/story/us-v-microsoft-supreme-court-oral-argument/" target="_blank" rel="noopener">article in Wired</a>.

gettyimages-913295392_small-300x200.jpg

U.S. v. Microsoft Leaves SCOTUS Between a Rock and a Hard Place

U.S. v. Microsoft Leaves SCOTUS Between a Rock and a Hard Place

In February the U.S Supreme Court heard oral arguments in United States v. Microsoft. At issue is Microsoft’s challenge to a warrant issued by a U.S. court dire

Companies that offer services, whether online or offline, to consumers on a subscription or other automatic renewal basis should be aware that such offers are heavily regulated at both the federal and state levels. A recent <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB313" target="_blank" rel="noopener">amendment to Section 17602 of California’s Business and Professions Code</a> provides a good opportunity for businesses that make subscription offers to review their practices. As of July 1, 2018, the obligations under California law will expand in two ways that may require businesses to update those practices.The first change relates to the information that businesses must provide to consumers regarding the terms of a subscription offer. The current law already requires a business to provide certain information about the renewal process—such as the amount of the recurring charges, the length of the renewal period, and the cancellation policy—both before the consumer accepts the agreement, and afterwards in an acknowledgement. The amendment provides that, as of July 1, 2018, if the offer includes any free trial or gift component, the information provided to consumers must also include a “clear and conspicuous explanation of the price that will be charged after the trial ends or the manner in which the subscription or purchasing agreement pricing will change upon conclusion of the trial.”The second change relates to the types of cancelation mechanisms that a business must make available. Under the current law, businesses must provide a cancelation mechanism that may include a toll-free phone number, email address, postal address, or another “cost-effective, timely, and easy-to-use” mechanism. The amendment provides that, as of July 1, 2018, consumers who accept a subscription offer online must have the option to terminate it exclusively online (instead of, for example, being required to call a toll-free number or send a written notice by postal mail).Accordingly, businesses that offer consumer subscriptions should take steps before July to ensure that:<ul><li>if the consumer receives a free or discounted trial, the consumer also receives clear and conspicuous notice of the price to be charged, or any changes to the price being charged, after the trial ends; and</li><li>if the consumer originally entered into a subscription online, the consumer also receives an entirely online mechanism for canceling the automatic renewal.</li></ul>Local district attorneys in California have recently sought to enforce California’s automatic renewal law, and plaintiffs’ attorneys have also attempted to bring class actions against companies related to alleged violations of the law, in some cases framed as a violation of California’s unfair competition law.In addition to the obligations under the California law, businesses should also be aware of other legal considerations affecting subscription programs and free-trial offers. For example, certain states require that a business provide a reminder notice to a subscription customer before charging him or her, if the renewal period exceeds a certain length of time—typically six months. The federal <a href="https://www.ftc.gov/enforcement/statutes/restore-online-shoppers-confidence-act" target="_blank" rel="noopener">Restore Online Shopper’s Confidence Act (ROSCA)</a>, which is enforced by the Federal Trade Commission (FTC), also imposes certain obligations. The FTC recently obtained a <a href="https://www.ftc.gov/news-events/press-releases/2017/11/online-lingerie-marketer-prohibited-deceiving-shoppers-about" target="_blank" rel="noopener">$1.3 million judgment against AdoreMe Inc.</a>—an online lingerie marketer that allegedly failed to provide a simple mechanism to stop recurring charges. The defendant had allegedly made it hard for consumers to cancel memberships, including by limiting the mechanisms for cancelation requests, and inadequately staffing its customer service department.The revisions to the California law, along with the patchwork of other applicable federal and state laws—and the attention from regulators, state attorneys and plaintiffs’ counsel—make it crucial for any business offering consumers a subscription or similar auto-renewal product or service to review its practices to ensure compliance.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

oneill_julie_blog_150x150.png

oneill_julie_common_640x280.jpg

oneill_julie_heroretina_2700x1160.jpg

oneill_julie_mobileretina_750x1040.jpg

oneill_julie_social_600x600.jpg

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

subscribebutton2-gettyimages-861579528-600px-300x206.jpg

Amended California Law Expands Requirements for Consumer Subscriptions

Amended California Law Expands Requirements for Consumer Subscriptions

Companies that offer services, whether online or offline, to consumers on a subscription or other automatic renewal basis should be aware that such offers are h

Following a <a href="https://cases.justia.com/federal/appellate-courts/ca6/16-2188/16-2188-2017-11-28.pdf?ts=1511892106" target="_blank" rel="noopener">recent decision</a> from the Sixth Circuit, anonymous bloggers and other Internet users who post third-party copyrighted material without authorization have cause for concern. They may be unable to preserve their anonymity.In Signature Management Team, LLC v. John Doe, the majority of a panel of the U.S. Court of Appeals for the Sixth Circuit established a new “presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff” in a copyright infringement case. This unmasking presumption is intended to protect the openness of judicial proceedings. Whether to unmask the defendant in such circumstances requires an examination of factors such as the plaintiff’s and public’s interest in knowing the defendant’s identity.The litigation leading to this decision began when Signature Management Team LLC, the plaintiff, filed an action for copyright infringement against John Doe, the defendant. Signature alleged that the defendant posted a hyperlink on his blog to a downloadable copy of a book copyrighted by the plaintiff. The plaintiff sought injunctive relief, including that the district court order the defendant to destroy all copies of the book in his possession, a permanent injunction that the defendant cease all infringing use of the book, and that the defendant be publicly unmasked.In response, the defendant asserted fair-use and copyright-misuse defenses. The defendant also asserted a First Amendment right to speak anonymously and argued that his identity should not be disclosed.During the discovery phase, the plaintiff moved to compel disclosure of the defendant’s identity. The district court applied the test articulated in <a href="https://casetext.com/case/art-of-living-foundation-v-does-1-10" target="_blank" rel="noopener">Art of Living Found. v. Does</a> and declined to unmask the defendant, finding that a possibility existed that he might win on the fair-use argument and thus may not be liable for copyright infringement. The defendant, however, was ordered to reveal his identity to the court and the plaintiff’s attorneys pursuant to a protective order.After the plaintiff prevailed on summary judgment on its copyright infringement claim, the district court again declined to unmask the defendant. The court concluded that unmasking was unnecessary to ensure that no further infringement would occur and that the defendant had already complied with the requested injunctive relief, making further relief unnecessary.The only issue on appeal was the district court’s post-judgment refusal to unmask the defendant. Justices White and Stranch of the Sixth Circuit observed that the decision to remain anonymous—including on the Internet—was “an aspect” of free speech protected by the First Amendment. While courts have developed “balancing tests” weighing the First Amendment’s protection of anonymous speech against a plaintiff’s interest in unmasking, these cases have generally dealt with anonymity rights during the discovery process. The majority found no case had dealt with the situation at hand, i.e., where judgment had been entered against the anonymous defendant.The majority held that, in a post-judgment context, maintaining the anonymity of the defendant raised different concerns than in the discovery phase of the case. Where a judgment had been entered against an anonymous defendant, there was no longer any concern about unmasking an innocent defendant. The majority acknowledged that copyright infringement was not entitled to First Amendment protection, but expressed some reservations that First Amendment rights may still be implicated. In any event, the majority noted that any anonymous speech rights that the defendant may have conflicted with the “important post-judgment” presumption of openness in judicial proceedings. At the same time, the majority recognized that where a defendant has complied with the relief ordered, there was no “practical need” to unmask the defendant.Based on all of these considerations, the majority did not agree that the district court automatically lacked jurisdiction to allow the defendant to remain anonymous when engaged in speech not covered by the First Amendment, finding that the speech here occurred “in the context” of anonymous blogging that is entitled to free speech protection. Instead, the majority found that there is “a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff.”The majority noted that, in deciding whether to unmask a losing defendant, a district court should consider the public interest in open records and the plaintiff’s need to learn the anonymous defendant’s identity to enforce its remedy. The greater these interests, the harder it will be for an anonymous defendant to overcome the unmasking presumption. A defendant can, however, rebut the presumption of openness by showing that he or she engaged in substantial protected speech (other than the infringing conduct, which is not protected) that would be chilled by unmasking.The dissent would have taken a harder line. Justice Suhrheinrich noted that copyright infringement is not protected speech so no balancing should be required. The use of an anonymous blog does not change the fact that the defendant committed copyright infringement and was thus not engaged in protected speech. The dissent further disagreed that there was “no practical need” to unmask the defendant. Refusing to unmask the defendant minimized the effect of the court’s order, downplayed the significance of the defendant’s misconduct, encouraged future infringement, and hindered the plaintiff’s ability to monitor compliance.In summary, anonymous bloggers and other Internet users should be aware that while they may avoid public unmasking in the discovery phase, they may be unable to protect their anonymity if ultimately found liable for copyright infringement. If other courts follow the Sixth Circuit’s lead on this subject, there may now be a presumption in the post-judgment stage in favor of unmasking anonymous defendants on the losing side of a case.

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

J. Alexander Lawrence

Anonymous Internet Users Beware: New Presumption in Favor of Unmasking the Losing Anonymous Defendant