Proposal to Make Suing Anonymous Avatars Harder
August 6th, 2007 by Benjamin Duranske
I hope to find out later today if Linden Lab is going to join PayPal in voluntarily complying with the Eros subpoena [it is], but in the meantime, American.com has an interesting article up suggesting a change in civil procedure to make it harder to force companies like Linden Lab to comply with requests for the real-life identities behind avatars. From the article:
[W]hen lawsuits involve subpoenas to uncover the identities of virtual avatars—or, for that matter, pseudonymous bloggers and blog commenters—both state and federal rules of civil procedure likely need to be reformed so that plaintiffs will need to satisfy some clear standard before they can force pseudonymous Internet users into the open. My suggestion: Plaintiffs should have to discuss the merits of the case itself in a fashion specific enough to survive a motion to dismiss—and thus to justify discovering the identity behind a particular avatar.
A plaintiff can currently file a complaint against a “John Doe” defendant, and immediately subpoena service providers seeking the real identity of the user behind the avatar. The providers can move to quash the subpoena, but the grounds for doing so are fairly narrow and important information is at stake. On the other hand, setting the hurdle higher would make it more difficult and more expensive to bring lawsuits based on in-world actions.
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10 Responses to “Proposal to Make Suing Anonymous Avatars Harder”
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Note: I converted this from a Reader Roundtable to a straight informational piece after learning that Linden Lab is complying with the Eros subpoena, as I anticipate that story will draw most of the attention on this issue for the time being. Feel free to comment, of course. I think it’s an interesting proposal.
What if…
the real person exists outside of the United States, and there is variance on policy procedure?
This article is spot on. Bravo. Plaintiffs have to address the merits at length later in the process anyway. Though costs would be higher, I think certain issues should be associated with higher costs and higher burdens. Too much can be lost from an anonymous blogger/resident’s perspective too easily as it is.
You know if “local governance” was government sanctioned, disputes could be settled without having to go through all the steps of formal courts. There could be many instances of resident-to-resident disputes where neither party is particularly interested or simply doesn’t needs to know the identity of the other party. There would be no need to seek subpoenas and go through this proposal’s steps in those cases, hence making costs lower.
I’m sure you’ve already thought of all of that quite a bit, though from what I can tell, the suggestion is to make it voluntary with incentives to join. Perhaps because it’s the most viable solution as it is…. Oh well, if it were government sanctioned, it could act to supplement the courts, perhaps tie-in financial/personal information in the back-end for judgment enforcements and the like, but not require private and/or irrelevant information ever to be forced into the public record on purpose or by accident. For bloggers/residents, losing an identity can be an enormous deal.
Woah, wait… trying to make it harder to sue online “John Doe’s”, that’s pretty far reaching on one privacy don’t you think? I mean I understand if someone doesn’t want to be know but if someone commits a crime, ip theft, among other illegal activity using a “John Doe” or anonymous personality, it makes it a lot harder to track down that person and get their information.
In this case, the plaintiff isn’t going in suing randomly, he knows who the person is, he’s making a legitimate case against him, but he also needs to get all of the information to properly have due justice. The plaintiff needs their day in court as much as the defendant.
[...] Over at Virtually Blind, Benjamin Duranske quotes an interesting article on American.com by Pejman Yousefzadeh ‘Virtual Reality Avatars are now real enough to be sued.‘ which suggests a change in the civil procedure to make it harder to force companies like Linden Lab to comply with requests for the real-life identities behind avatars: [...]
Actually the standard for a motion to dismiss is quite low, especially in federal court. A number of cases have set the bar for unmasking anonymous defendants even higher, namely, that the plaintiff has to put forward facts sufficient to survive a motion for summary judgment.
The balancing test that the court has to do is between the defendant’s First Amendment right to speak freely, and the plaintiff’s right to seek redress. Courts such as the Delaware supreme court have balanced these interests using the summary judgment standard. See, for example, Doe v. Cahill, which I have written about here: http://www.internetcases.com/archives/2005/10/delaware_decisi.html
Thanks for the comment, Evan. That’s an interesting piece.
SJ seems like an awfully high bar to me, given that it’s going to be nearly impossible to gather evidence without a defendant.
This feels very similar to the issues being faced in the “RIAA vs. the World” suits’ ex parte motion to compel discovery motions being used to identify John Doe defendants.
A recent ruling denied the RIAA’s motion, which they filed against the University of New Mexico to disclose the identities of 16 student internet users.
Of particular, and perhaps paralleled, interest in the decision is the court’s statement in response to the RIAA’s claim that responsive documents are required immediately to stop irreparable harm:
“While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian “suspension of disbelief” to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation.”
More here, courtesy of Ray Beckerman’s site:
http://recordingindustryvspeople.blogspot.com/…discovery-application.html
Looks like I should have left it a Reader Roundtable after all! Great comments.
Thanks for that link, Henri.
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