Should Anti-MLM Blogger Be Allowed To Remain Anonymous, Even After Losing In Court?

Image courtesy of Ken Fager

Four years ago, an anonymous former Amway marketer who operates a blog critical of multi-level marketing companies published in its entirety the text of a book published by a prominent figure in the MLM industry. The publisher of that book successfully sued this unnamed blogger for copyright infringement, but the court allowed the shroud of anonymity to stay in place. Now the publisher is calling on a federal appeals court to unmask the blogger, while free speech advocates argue that there is no need to know this person’s identity.

While the name of the Amthrax blog is a specific reference to Amway, the site also covers a number of other multi-level marketing businesses related, at least indirectly, to Amway. Among those topics is the Life direct sales company, founded by a former distributor for Amway and later its competitor Mona Vie.

At some point in Jan. 2013, the Amthrax blog posted a PDF of what appeared to be the entire text of The Team Builder’s Textbook, written by the founders of the Life MLM, without permission.

Signature Management Team, the company that holds the copyright to the book, sued [PDF] the “John Doe” operator of Amthrax in a federal court in Michigan, alleging copyright infringement, and seeking to unmask the unknown blogger.

After a lot of back and forth over attempts to reveal Doe’s real identity, the court ordered the blogger to delete all copies of the allegedly offending PDF, and to swear to the court that they were no longer in possession of this book in any form.

In July 2016, the court granted summary judgment [PDF] in favor of the publisher, but the judge ruled that Signature failed to demonstrate why it was necessary to unmask the defendant if the blogger had already satisfied the sought-after injunctive relief.

Signature subsequently appealed this decision to the Sixth Circuit, arguing that the lower court judge had abused their discretion by not forcing Doe to identify themselves, and that Doe has no right to remain anonymous.

In Doe’s response [PDF], the blogger argues that the court was under no obligation to identify anyone, as no injunction was issued. Even if one had been, Doe contends that there is no rule requiring the court to specifically name the enjoined party.

Doe received a legal boost this morning from the Electronic Frontier Foundation, which filed a brief [PDF] in support of allowing the blogger to remain anonymous.

The EFF argues that the job of the court was to balance the needs of all parties involved, and that the judge correctly concluded — on multiple occasions before granting summary judgment — that Signature’s need to unmask Doe did not outweigh the harm that could come to Doe from being unmasked.

Beyond that, there are people and companies that use petty legal actions to unmask an anonymous critic or whistleblower.

“Litigants often bring suits that seek to unmask anonymous speakers to punish, humiliate, or retaliate with the ultimate goal of silencing their speech,” notes the EFF, pointing to examples like one company’s failed efforts to unmask a Yahoo forum user over a critical comment, or the school superintendent in Oklahoma who tried to sue message board users for posting things he didn’t like. “Thankfully, courts have recognized the harm that would flow from summarily unmasking speakers without first considering whether there is an important need to do so.”

In addition to the potential for public shaming and scrutiny that can come with being identified, unnecessary unmasking could also have a chilling effect on others’ free speech, writes EFF. If people see that a simple copyright claim is sufficient to reveal a blogger’s identity, they may be hesitant to write anything in the first place.

“Being able to speak online anonymously allows citizens to air dissenting views without fear of retaliation,” writes EFF’s Aaron Mackey. “Unmasking anonymous bloggers without proper justification can discourage people from speaking out or commenting online, which chills the free speech rights of all Americans.”