California Court of Appeals, Second District, First Division
Petition for extraordinary writ Los Angeles County Super. Ct. No. SS022099. Richard Stone, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
McKenna Long & Aldridge, Charles A. Bird; Public Citizen Litigation Group, Paul Alan Levy; and Micah Gabriel Katz for Petitioner.
No appearance for Respondent.
McPherson Rane, Edwin F. McPherson, Pierre B. Pine; Rosenberg & Giger and John J. Rosenberg for Real Party in Interest.
Escape Media Group (Escape) operates an Internet service called Grooveshark through which users may upload and retrieve digital music files. UMG Recordings, Inc. owns an extensive music catalog that includes songs by such artists as Buddy Holly, The Jackson 5, Marvin Gaye, and The Who. In 2010, UMG sued Escape in the Supreme Court of the State of New York, alleging Escape infringed on copyrights afforded by New York common law by reproducing user-uploaded, copyrighted sound recordings, storing them on its servers, and distributing copies to other users, to its own profit. Escape denied liability, asserting its conduct was permissible under federal copyright law.
Digital Music News LLC (Digital) publishes the online newsletter Digital Music News, which focuses on the digital music industry. In 2011, Digital Music News reported that a music artist unaffiliated with UMG had also accused Escape of copyright infringement.
The article was followed by approximately 100 reader comments, two of which are of interest here. In them, a reader identified only as “Visitor” represented he or she was an Escape employee and routinely received “direct orders fro the top” to upload music to its servers, where it was stored and made available to third party users and never removed, even if artists or music labels complained.
Under the auspices of the Supreme Court of the State of New York, County of New York, Escape served a subpoena on Digital (which is not a party to
the litigation between UMG and Escape), seeking Visitor’s identity. When Digital refused to comply, Escape petitioned the Los Angeles Superior Court pursuant to the Interstate and International Depositions and Discovery Act, Code of Civil Procedure section 2029.100 et seq., for enforcement. The court ordered Digital to comply with the subpoena, from which order Digital now appeals.
Digital argues information identifying Visitor will not reasonably lead to the discovery of admissible evidence in the New York lawsuit and is protected by Visitor’s right to privacy. We agree with both contentions, and will therefore issue a writ of mandate directing the trial court to vacate its order enforcing Escape’s subpoena.
Statement of Facts
1. The New York Lawsuit
Grooveshark enables third party users to upload, share, download and stream files containing audio recordings. On January 6, 2010, UMG sued Escape in New York state court for state common law copyright infringement and unfair competition, alleging Escape enabled and encouraged Grooveshark users to upload unauthorized copies of UMG’s recordings to Grooveshark, which Escape then copied to its servers and subsequently distributed to other Grooveshark users. (UMG Recordings v. Escape Media Group (N.Y.Sup.Ct. 2012) 37 Misc.3d 208 [948 N.Y.S.2d 881].)
Escape denied the allegations and asserted a number of affirmative defenses and counterclaims. Among other defenses, Escape claimed immunity under the Digital Millennium Copyright Act (DMCA; Pub.L. No. 105-304 (Oct. 28, 1998) 112 Stat. 2860), which shields from federal copyright infringement liability an Internet service provider that hosts solely third party user materials, so long as it promptly removes copyrighted materials when it becomes aware of the infringement. (17 U.S.C. § 512(a)-(c).) On April 23, 2013, ...