Doe Wins Motion to Unseal, Bodes Well for Preservation of Anonymity | Stanford Center for Internet and Society [beta site]

H.B. Fuller v. Doe is a case my Cyberlaw Clinic students and I have been working on for a year or so. Today we had some good news. The Sixth District Court of Appeal in California has granted our client John Doe’s motion to unseal records. In the trial court, Doe and Fuller stipulated to sealing documents Fuller claimed contained confidential information. On appeal, we moved to unseal the records in the appellate court because they do not contain confidential information. The appellate court agreed in this published opinion.

This conclusion could lead to a great outcome. Allowing companies to bring employee breach of contract claims based on conclusory allegations of confidentiality could really threaten anonymous speech. The case law clearly establishes a right to anonymous speech and a burden on plaintiffs to make some showing of wrongdoing before enforcing subpoenas for identity information, but exactly what that burden of proof is and what evidence is sufficient is still being fleshed out in the courts, including through cases like Fuller v. Doe.

For more about the case, visit the Fuller v. Doe page

Bruce Schneier’s been following Microsoft’s lawsuit against the anonymous John Does responsible for the FairUse4WM software. I decided to take a look at the complaint and see what, exactly, Microsoft says is illegal about FairUse4WM.

The complaint is pretty sparse. It has just five paragraphs of factual allegations, only one of which explains what FairUse4WM does (strips DRM), and only one that explains what the Does allegedly did wrong:

Upon information and belief, Defendants’ FairUse4WM software program: (i) contains proprietary computer code from Microsoft’s Windows Media Format SDK v. 9.5 (ii) is a derivative work of Microsoft’s Windows Media Format SDK v. 9.5, and (iii) is a derivative work of Microsoft’s DRM technologies.

Let’s dissect that. “Upon information and belief” is a phrase lawyers use in complaints when they have a good faith belief that something is true, but they don’t have any personal knowledge that it is true. This is a pretty weak way to allege the fundamental charge in the lawsuit, which is that FairUse4WM is copyright infringing (as opposed to aids others in infringement).

Why doesn’t Microsoft know whether or not FU4WM contains proprietary code? I need some tech help here. Is it possible to download FU4WM, look at the code and see whether it contains MS code? Even the claim that FU4WM is a derivate work of WMF SDK. This again would require the program code to use some protected expressive aspect of the code from WMF SDK.

Finally, the allegation that FU4WM is a derivative of Microsoft’s “DRM technologies” is just vague to the extreme. Which technologies? What part is derivative? This is almost like an afterthought because someone thought it was better to list three things than two.

If the allegations are so sparse, what is this case about? It looks to me like the case is really about finding out who the John Does are. Microsoft filed a motion for third party discovery and a declaration asking for permission to serve subpoenas for their identifying information.

Why would Microsoft want to know who the Does are? I suppose even with a case this weak, they may believe they can obtain a settlement that would stop the Does from doing what they are doing. That’s going to be difficult if the creators are overseas or able to fight back. But stopping these Does isn’t going to stop another set of coders from distributing a different tool, or a new tool that breaks the next iteration of their DRM, particularly if those tools are completely free of proprietary code.

I think Microsoft might believe that the people behind FairUse4WM are insiders, because of the speed with which the tool was released following the latest DRM updates. I think they want to know if there’s a fox in the henhouse. That’s the only way I can see this lawsuit making any kind of financial sense for the company. Then again, it doesn’t look like the lawyers have put a lot of time into this case so far.

On Thursday, I went to the oral argument before the Sixth Circuit Court of Appeal in California in the Apple v. Does case. Here’s a picture of the pro-journalist crew hanging in the hallway after the hearing.