Not that Mudcat has had any copyright problems lately.

And what happens legally when a private website which offers users anonymity to post, suddenly starts to selectively reveal information about an anonymous poster criticizing it's business in the online forum? Dunno, but here is some interesting information from GigaLaw.com about it:

As employees were increasingly perceived as having been fired for their opinions and sometimes lost valuable benefits like bonuses ad stock options in the process, public interest groups, such as Public Citizen, the Electronic Frontier Foundation, and the ACLU took notice of this trend and began raising First Amendment free speech concerns on behalf of these defendants, sometimes known as "John Doe" defendants because of their (temporary) anonymity.

Simply put, they argued in cases brought around the country that people should be able to participate online without fear that someone who wishes to harass or embarrass them into silence can file a frivolous lawsuit to reveal their identity without just cause.

With this direct assault on what had been a very successful and relatively quick method of silencing online critics, judges in different states have begun to shift their thinking and have responded increasingly favorably to arguments that online anonymous speech deserves Constitutional protection.

So much so that, in a number of recent cases a noticeable trend has emerged, one which now has made it more difficult for plaintiffs to unmask anonymous posters on the Internet without showing their case has merit and without following procedural guidelines created by individual judges in an effort to give posters an opportunity to fight back under pseudonyms before losing their anonymity.

Some state courts across the country have handed down even more wide-reaching protections against involuntary identity unmasking of individuals with information useful to cases where they are not parties and against liability for posting alleged defamatory statements made by others.

Looking at a few illustrations shows the dramatic turnaround that is currently underway on this issue and points to some principles that plaintiffs and posters alike can look to in trying to evaluate their rights in this fast-moving area.

Emerging Legal Tests for Disclosing Identity

It's Getting Harder to Unmask Defendants
The emerging trend embodied in several recent decisions in this controversial area shows that courts are clearly giving more weight to arguments that the First Amendment protects the right to speak anonymously on the Internet.

In New Jersey, for example, in July 2001, a state appellate court - upheld a lower court ruling denying a subpoena to identify an online poster, in Dendrite International, Inc. v. John Doe No.3, et al.

The appellate court in Dendrite took advantage of the opportunity to establish a four-pronged test that plaintiffs must meet to outweigh an anonymous defendant's constitutional privilege of anonymity. Applying standards previously laid down in a similar case decided in California, the New Jersey Court held that parties seeking discovery to unmask an anonymous poster must:

identify the unknown party with sufficient specificity to allow the court to decide if it has jurisdiction over the party,
identify all previous steps taken to locate the missing party and notify it of the lawsuit and the opportunity to object,
establish by proof to the court's satisfaction that the plaintiff's suit could withstand a motion to dismiss, meaning that there must be a viable claim,
make a showing justifying why the specific discovery requested is needed, and that the proposed recipients of the subpoena (such as ISPs) are both limited in number and reasonably calculated to produce the identities and whereabouts of the unknown defendant so legal process can be served on them.
In similar fashion, in Pre-Paid Legal Services v. Sturtz, decided in August 2001, a Superior Court judge in Santa Clara County, California, quashed a subpoena issued to Yahoo by an Oklahoma-based legal services company that requested identities of anonymous posters after they had posted negative remarks about the company on a Yahoo message board devoted to discussions about the company.

Similar to the standards reiterated in the Dendrite case, the judge in Pre-Paid Legal concluded that the posters' anonymity could not be breached by a subpoena absent a clear showing that specifically identified that

relevant information about the anonymous poster is central to the claims of the party seeking the information,
those claims are viable, and
the party cannot acquire the information in another way.