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`Case No.: 10-CV-05022-LHK
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`ORDER GRANTING MOTION FOR
`RELIEF FROM NONDISPOSITIVE
`PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`ART OF LIVING FOUNDATION,
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` Plaintiff,
`v.
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`DOES 1-10,
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` Defendants.
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`Doe Defendant, specially appearing under the pseudonym “Skywalker,” moves for relief
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`from Magistrate Judge Lloyd’s order denying his motion to quash a subpoena intended to discover
`his identity from third-party Internet Service Providers.1 Having considered the parties’ briefing
`and oral arguments, the Court finds that Skywalker’s First Amendment right to anonymous speech
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`outweighs the need for discovery at this time. Accordingly, the motion for relief is GRANTED.
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`The Art of Living Foundation (“AOLF”) is an international “educational and humanitarian”
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` I. BACKGROUND
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`organization dedicated to teaching the spiritual lessons of “His Holiness Ravi Shankar.” ECF No.
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`Although Skywalker’s gender is unknown, because counsel has referred to the Defendant as
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`a “he,” the Court will do the same.
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`For the Northern District of California
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`Case5:10-cv-05022-LHK Document129 Filed11/09/11 Page2 of 16
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`85 ¶¶ 1, 17. AOLF is based in Bangalore, India and has chapters in more than 140 countries. Id. ¶
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`1. Plaintiff, also called Art of Living Foundation, is the United States branch of AOLF. Id. ¶ 2.
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`Plaintiff offers courses that employ breathing techniques, mediation and low-impact yoga to
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`achieve stress relief and general wellness. Id. ¶ 3.
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`Defendants are allegedly “disgruntled former student-teachers and students of Plaintiff”
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`who operate internet blogs called “Leaving the Art of Living” and “Beyond the Art of Living”
`under the pseudonyms “Skywalker” and “Klim.” 2 See id. ¶ 3. The blogs are intended, at least in
`part, to provide a forum for criticism of Plaintiff, AOLF and Ravi Shankar. See ECF No. 83. The
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`thrust of Defendants’ critique is that while AOLF’s multifarious organizations purport to exist “for
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`the benefit of humanity,” they are in fact “a manipulative and abusive cult.” ECF No. 12 at 10.
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`On November 5, 2010, Plaintiff filed a complaint alleging claims of defamation,
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`misappropriation of trade secrets, copyright infringement and trade libel stemming from postings
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`on Defendants’ blogs. See ECF No. 1. Specifically, Plaintiff asserted that Defendants published
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`its copyrighted Breathe Water Sound Manual (“BWSM”) and trade secret teaching methods, and
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`made numerous false and disparaging remarks about Plaintiff and Ravi Shankar.
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`Because the postings were made pseudonymously, Plaintiff also sought leave to take
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`expedited discovery for the purpose of identifying and serving process on Defendants. See ECF
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`No. 5. On December 17, 2010, Magistrate Judge Beeler granted Plaintiff’s request. See ECF No.
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`10. On December 20 and 21, Plaintiff served subpoenas seeking to identify Defendants on Google,
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`Inc. and Automattic, Inc., the owners of the companies that host Defendants’ blogs. See ECF No.
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`99.
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`On January 31, 2011—before Google or Automattic had responded to the subpoenas—
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`Defendants, specially appearing through counsel, moved to dismiss Plaintiff’s defamation claim, to
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`strike Plaintiff’s trade secrets claim under California’s Anti-SLAPP provision, and to quash the
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`order allowing discovery. See ECF No. 11, 12, 13, 99. Skywalker admitted that he (but not Klim)
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`had published the BWSM and alleged trade secret materials on his blog as part of a larger
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`The Court will refer to Skywalker and Klim collectively as “Defendants” and Skywalker
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`individually by his blogger name.
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
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`For the Northern District of California
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`campaign to “debunk the notion that Ravi Shankar is an enlightened being in possession of
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`mystical ‘secret knowledge.’” ECF No. 12 at 2; ECF No. 15. He also indicated that the materials
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`had been removed shortly after being posted in response to a DMCA takedown notice. See ECF
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`No. 15 ¶¶ 9-10.
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`In their motion to quash, Defendants argued that allowing disclosure of their identities
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`would violate their First Amendment right to anonymous speech. They contended that Plaintiff’s
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`claims were “manufactured solely for the purpose of identifying Doe defendants, and are
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`inextricably intertwined with an effort to chill Doe defendants from freely expressing their
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`criticisms of Shankar and the organizations that surround him.” ECF No. 28 at 9. They further
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`claimed that there was no “evidentiary basis” for believing that they had “engaged in wrongful
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`conduct that has caused real harm to the interests of [Plaintiff].” Id.
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`On June 15, 2011, while the motion to quash was still pending, the Court granted the
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`motion to dismiss the defamation and trade libel claims, finding that the statements on Defendants’
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`blogs were “constitutionally protected opinions.” ECF No. 83 at 9-10. The Court declined to
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`strike the trade secrets claim, but stayed any discovery as to that cause of action because Plaintiff
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`had failed to identify with particularity the “genuinely secret aspects of its teaching lessons and
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`manuals.” Id. at 19. Subsequently, Plaintiff filed a First Amended Complaint (“FAC”) alleging
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`only claims for copyright infringement and misappropriation of trade secrets. See ECF No. 85.
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`On August 10, 2011, Magistrate Judge Lloyd denied Defendants’ motion to quash as to
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`Skywalker, but granted it as to Klim. In reaching his conclusion, Judge Lloyd applied the factors
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`discussed in Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004),
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`determining that: (1) Plaintiff had alleged a prima facie case of copyright infringement because
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`Skywalker had admitted to publishing the BWSM, (2) the subpoenas were targeted to obtain
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`information to identify Skywalker, (3) Plaintiff had no other means to obtain Skywalker’s identity,
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`(4) without having Skywalker’s identity, it would be prohibitively difficult for Plaintiff to conduct
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`discovery, and (5) even if Skywalker had engaged in protected speech, he had no expectation of
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`privacy because “the First Amendment does not shield copyright infringement.” ECF No. 90 at 5-
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document129 Filed11/09/11 Page4 of 16
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`7 (citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 555-56 (1985)).
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`Importantly, because the undersigned judge had previously ruled that discovery could not proceed
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`on the trade secrets claim until Plaintiff had identified its trade secrets, Judge Lloyd’s
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`determination was based solely on Plaintiff’s copyright claim. Id.
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`Skywalker moved for relief from the discovery order two weeks later. He contended that
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`because his speech concerned a matter of public interest, the Magistrate Judge should have applied
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`the more rigorous standard articulated by Highfields Capital Mgmt. L.P. v. Doe, 385 F. Supp. 2d
`969, 975-76 (N.D. Cal. 2005), in considering whether to allow his identity to be revealed.3 Amici
`curiae Public Citizen, the American Civil Liberties Union and Electronic Frontier Foundation filed
`a brief supporting Skywalker’s position.4
`Although Skywalker remained anonymous, the parties subsequently exchanged initial
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`disclosures. See ECF No. 99. Plaintiff also served interrogatories and requests for production on
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`Skywalker through counsel. See id. At oral argument, Defendants’ counsel indicated that
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`Skywalker has produced documents and responded to interrogatories where they do not apply
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`solely to the trade secrets claim, for which discovery is stayed because Plaintiff has not identified
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`its trade secrets.
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` On September 12, 2011, Defendants filed a second motion to strike Plaintiff’s trade secrets
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`claim. Hearing on that motion is set for December 8, 2011. Defendants also moved for summary
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`judgment on Plaintiff’s copyright infringement claim (“MSJ Motion”). See ECF No. 111. In that
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`motion, Defendants argued for the first time that the publication of the BWSM was protected by
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`fair use, and submitted evidence that Plaintiff did not own a valid copyright in the BWSM.
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`Hearing on the MSJ Motion is set for January 12, 2012.
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`The Highfields standard was developed by Magistrate Judge Brazil and adopted by Judge
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`Chesney. See Highfields Capital Mgmt. L.P. v. Doe, 385 F. Supp. 2d 969, 970-71 (N.D. Cal.
`2005).
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`Amici argue that the Court should apply the standard articulated by the New Jersey Court
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`of Appeal in Dendrite Intern., Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. 2001). Because the
`Highfields court relied heavily on Dendrite, and because the tests do not differ meaningfully as
`applied to this dispute, the Court focuses its discussion on the Highfields test.
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
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`II. STANDARD OF REVIEW
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`In reviewing a magistrate judge’s order resolving a pre-trial discovery dispute, the district
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`court may overturn any legal conclusion that is “contrary to law.” Adolph Coors Co. v. Wallace,
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`570 F. Supp. 202, 205 (N.D. Cal. 1983) (citing 28 U.S.C. § 636(b)(1)). Findings of fact may be
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`reversed only if they are “clearly erroneous.” Id.
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`Insofar as the challenged decision involves the application of constitutional standards to
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`particular facts, the district court must review the magistrate judge’s conclusion de novo. Id. at 206
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`(“[T]he essential independence of the exercise of judicial power of the United States in the
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`enforcement of constitutional rights requires that the Federal court should determine such an issue
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`upon its own record and facts elicited before it.”) (citing Northern Pipeline Co. v. Marathon Pipe
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`Line Co., 458 U.S. 50, 82 (1982) (emphasis in original)). Given that Skywalker’s objections raise
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`significant First Amendment concerns, the Court reviews the challenged order de novo.
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`III. DISCUSSION
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`A.
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`The motion to quash the subpoena seeking Skywalker’s identity must be granted
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`It is well established that the First Amendment protects the right to anonymous speech. See
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`McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“An author’s decision to remain
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`anonymous, like other decisions concerning omissions or additions to the content of a publication,
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`is an aspect of the freedom of speech protected by the First Amendment.”). While the Internet
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`clearly facilitates anonymous communication, “there is ‘no basis for qualifying the level of First
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`Amendment scrutiny that should be applied’ to online speech.” Anonymous Online Speakers v.
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`United States Dist. Court (In re Anonymous Online Speakers), No. 09-71265, 2011 WL 61635, at
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`*2 (9th Cir. Jan. 7, 2011) (citing Reno v. ACLU, 521 U.S. 844, 870 (1997)). “As with other forms
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`of expression, the ability to speak anonymously on the Internet promotes the robust exchange of
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`ideas and allows individuals to express themselves freely without ‘fear of economic or official
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`retaliation . . . [or] concern about social ostracism.’” Id. (citing McIntyre, 514 U.S. at 341-42).
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
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`For the Northern District of California
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`However, the right to anonymity is not absolute. Where anonymous speech is alleged to be
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`unlawful, the speaker’s right to remain anonymous may give way to a plaintiff’s need to discover
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`the speaker’s identity in order to pursue its claim. See, e.g., Sony Music, 326 F. Supp. 2d 556
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`(plaintiffs alleging widespread copyright infringement may discover the identities of individuals
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`alleged to have illegally downloaded plaintiffs’ musical recordings); In re Anonymous Online
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`Speakers, 2011 WL 61635 (finding no clear error in requiring disclosure of the identity of
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`individuals alleged to have tortiously interfered with plaintiff’s contracts by posting anonymous
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`messages on internet blogs); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal.
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`1999) (allowing discovery as to the identity of an anonymous website domain owner alleged to
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`have infringed plaintiff’s trademarks); but see Highfields, 385 F. Supp. 2d 969 (quashing a
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`subpoena seeking the identity of an individual accused of trademark infringement, defamation and
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`unfair competition stemming from anonymous posts on an internet message board); Dendrite
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`Intern., Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. 2001) (preventing disclosure of the identity of
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`an individual alleged to have posted defamatory statements against a public corporation on an
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`internet message board); John Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005) (preventing
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`disclosure of the identity of an individual alleged to have posted defamatory statements against a
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`political candidate on an internet message board).
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`As the Ninth Circuit has recently noted, “the many federal district and state courts that have
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`dealt with this issue have employed a variety of standards to benchmark whether an anonymous
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`speaker’s identity should be revealed.” In re Anonymous Online Speakers, 2011 WL 61635, at * 5
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`(discussing various standards). In order to avoid compromising First Amendment rights in a
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`baseless lawsuit, most courts first require the plaintiff to make a prima facie showing of the claim
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`for which disclosure is sought. Some courts have accepted a “legitimate, good faith basis” for the
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`plaintiff’s allegations, see In re Subpoena Duces Tecum to America Online, Inc., No. 40570, 2000
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`WL 1210372, at *8 (Va. Cir. Ct. Jan. 31, 2000), rev’d on other grounds by America Online, Inc. v.
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`Anonymous Publicly Traded Co., 261 Va. 350 (Va. 2001), while more exacting standards demand
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`the production of admissible evidence establishing each essential element of a claim, see, e.g.,
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`For the Northern District of California
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`United States District Court
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`Cahill, 884 A.2d 451 (requiring the plaintiff to meet a hypothetical summary judgment standard);
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`Highfields, 385 F. Supp. 2d at 975 (“The plaintiff must adduce competent evidence … address[ing]
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`all of the inferences of fact that plaintiff would need to prove in order to prevail under at least one
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`of the causes of action plaintiff asserts.”) (emphasis in original).
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`In addition to the plaintiff’s initial burden, the most rigorous standards require the court to
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`balance “the magnitude of the harms that would be caused to the competing interests by a ruling in
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`favor of plaintiff and by a ruling in favor of defendant.” Highfields, 385 F. Supp. 2d at 980; see
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`also Dendrite, 775 A.2d at 760 (“The court must balance the defendant’s First Amendment right of
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`anonymous free speech against the strength of the prima facie case presented and the necessity for
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`the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.”);
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`compare Cahill, 884 A.2d at 461 (no balancing test is required because “[t]he summary judgment
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`test is itself the balance”). In effect, these tests resemble the preliminary injunction inquiry, which
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`requires the court to “balance the competing claims of injury and … consider the effect on each
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`party of the granting or withholding of the requested relief.” Winter v. Natural Resources Defense
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`Council, Inc., 555 U.S. 7, 24 (2008) (internal citations omitted).
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`Given the nature of Skywalker’s speech, Highfields more appropriately
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`balances the parties’ competing interests than Sony Music
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`In choosing the proper standard to apply, the district court should focus on the “nature” of
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`the speech conducted by the defendant, rather than the cause of action alleged by the plaintiff. See
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`In re Anonymous Online Speakers, 2011 WL 61635, at *6 (“We suggest that the nature of the
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`speech should be a driving force in choosing a standard by which to balance the rights of
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`anonymous speakers in discovery disputes.”); SI03, Inc. v. Bodybuilding.Com, LLC, No. 10-35308,
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`2011 WL 2565618, at *1 (9th Cir. June 29, 2011) (“The district court should have determined the
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`nature of the speech at issue before settling upon a standard for disclosure.”). For example, a more
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`rigorous standard may be applicable where the defendant’s speech is political, religious or literary,
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`while commercial speech should be subject to a lesser standard. See id. (requiring the plaintiff to
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`meet Cahill’s hypothetical summary judgment standard would be inappropriate if the defendants’
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`For the Northern District of California
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`United States District Court
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`speech were purely commercial). As the Ninth Circuit has explained, “the specific circumstances
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`surrounding the speech serve to give context to the balancing exercise.” In re Anonymous Online
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`Speakers, 2011 WL 61635, at *6.
`Sony Music did not involve protected speech
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`i.
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`The “speech” at issue in Sony Music barely implicated the First Amendment at all. The
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`Sony Music plaintiffs were record companies suing forty unidentified defendants alleged to have
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`illegally downloaded and distributed plaintiffs’ copyrighted songs using a “peer to peer” file
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`copying network. Sony Music, 326 F. Supp. 2d at 557. The plaintiffs’ sought to identify the
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`defendants so that they could be served with process, and the defendants moved to quash. The
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`Sony Music court began its analysis by recognizing the First Amendment protection in anonymous
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`speech. Id. at 562-63. However, in granting the request for discovery, the court found that an
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`individual using the internet to illegally download or distribute copyrighted music is “not seeking
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`to communicate a thought or convey an idea. Instead the individual’s real purpose is to obtain
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`music for free.” Id. at 564.
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`Highfields, on the other hand, addressed claims based on critical, anonymous commentary
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`within the ambit of the First Amendment. See Highfields, 385 F. Supp 2d at 975. The plaintiff,
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`Highfields Capital Management, was a hedge fund manager and shareholder of Silicon Graphics,
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`Inc. (SGI). The anonymous defendant used the screen name “highfieldcapital” to post several
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`comments referencing SGI’s stock performance on an internet message board. The plaintiff sued
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`for defamation, trademark infringement, and unfair competition, and requested disclosure of the
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`defendant’s identity from the owner of the message board. In considering the plaintiff’s request,
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`the magistrate judge first found that the defendant’s remarks consisted of “sardonic commentary,”
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`“parody” and “irony” protected by the First Amendment. Id. The court further noted that “a
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`person like defendant has a real First Amendment interest in having his sardonic message reach as
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`many people as possible—and being free to use a screen name of the kind he used here carries the
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`promise that more people will attend to the substance of his views.” Id. at 980. Finding that the
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`plaintiff’s allegations of misconduct did not outweigh the defendants’ First Amendment interests,
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document129 Filed11/09/11 Page9 of 16
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`the court denied the request for discovery. See id. Thus, while Sony Music implicitly assumes that
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`the only First Amendment interest at issue is the right to anonymity, Highfields is premised on the
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`understanding that the content of the defendant’s speech also has First Amendment value.
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`ii.
`Skywalker’s speech raises substantial First Amendment concerns
`As in Highfields, the speech at issue here merits First Amendment protection. In its Order
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`of June 15, 2011, the Court noted that Skywalker’s blogs are “obviously critical … [and filled]
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`with heated discussion and criticism of the Art of Living Foundation and Ravi Shankar.” ECF No.
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`83 at 10. In dismissing Plaintiff’s defamation claim, the Court also concluded that Skywalker’s
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`statements were “constitutionally protected opinions.” Id. The Court further found that
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`“anonymous statements that the Art of Living Foundation is basically a cult and a sham is speech
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`on a ‘public issue.’” Id. The California Court of Appeal has noted that “although matters of public
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`interest include legislative and governmental activities, they may also include activities that
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`involve private persons and entities, especially when a large, powerful organization may impact the
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`lives of many individuals.” Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 649 (Cal.
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`Ct. App. 1996) (allegations that the Church of Scientology harmed and abused its members was
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`speech in connection with a ‘public issue’)). Given that AOLF has chapters in 140 countries and is
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`“one of the United Nations’ largest volunteer-based NGOs,” Skywalker’s condemnation of the
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`organization is clearly a matter of public interest. See ECF No. 85 ¶ 1.
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`Contrary to Plaintiff’s assertions, evidence of copyright infringement does not
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`automatically remove the speech at issue from the scope of the First Amendment. While “the First
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`Amendment does not shield copyright infringement,” Harper, 471 U.S. at 555-56, “copyright law
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`contains built-in First Amendment accommodations.” Eldred v. Ashcroft, 537 U.S. 186, 219-20
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`(2003). Perhaps the most important is the doctrine of fair use, which allows the public to use
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`copyrighted works “for purposes such as criticism, comment, news reporting, teaching … and
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`scholarship.” 17 U.S.C. § 107; see also Elvis Presley Enters. V. Passport Video, 349 F.3d 622, 626
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`(9th Cir. 2003) (“First Amendment concerns in copyright cases are subsumed within the fair use
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`inquiry.”). In this case, the Court has acknowledged that “Skywalker appears to have published the
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`9
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`For the Northern District of California
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`United States District Court
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`[protected materials] … as part of a larger effort to debunk the notion that the Art of Living
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`Foundation and Ravi Shankar possess some ‘secret higher knowledge.’” Id. Although the Court
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`need not determine at this stage if Skywalker’s conduct is protected by fair use, the circumstances
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`here create a substantial question as to whether the doctrine applies. See New Era Publications
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`Intern., ApS v. Carol Pub. Group, 904 F.2d 152 (2d Cir. 1990) (the use of copyrighted quotations
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`in a biography of Church of Scientology founder L. Ron. Hubbard was protected where the
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`intended purpose of the work was to show that “Hubbard was a charlatan and the Church a
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`dangerous cult”). The Court therefore finds that even if Skywalker’s speech is not “political” or
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`“religious,” as he has argued, it at least raises significant constitutional issues.
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`Highfields is consistent with recent Ninth Circuit precedent indicating
`iii.
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`that courts should consider the potential impact of a discovery request
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`on chilling protected First Amendment activity
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`Although there is a “paucity of appellate precedent” on this issue, In re Anonymous Online
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`Speakers, 2011 WL 61635, at *5, one recent Ninth Circuit case supports the application of the
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`Highfields standard to the instant dispute. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.
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`2010), the Court of Appeal considered the efforts of a party in California’s same-sex marriage suit
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`to obtain internal campaign communications related to the development and advertising of a ballot
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`proposition campaign. The Perry court first considered whether the proponents—the opponents of
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`disclosure—had made a “prima facie showing of arguable First Amendment infringement” by
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`demonstrating that the discovery request “would likely have a chilling effect on political
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`association.” Id. at 1160, 1165. Finding that disclosure would have such a chilling effect, the court
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`determined that the plaintiffs had failed to “demonstrate a sufficient need for the discovery to
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`counterbalance that infringement.” Id. at 1164.
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`While Perry did not involve compelled discovery of an anonymous speaker’s identity, its
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`analysis suggests that where substantial First Amendment concerns are at stake, courts should
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`determine whether a discovery request is likely to result in chilling protected activity. See In re
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`Anonymous Online Speakers, 2011 WL 61635, at *4 (noting that the Perry analysis is “instructive”
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`in a discovery dispute regarding anonymous speech). The Highfields court addressed similar
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
`
`10
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`For the Northern District of California
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`United States District Court
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`Case5:10-cv-05022-LHK Document129 Filed11/09/11 Page11 of 16
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`concerns by considering whether disclosure of the defendant’s identity would deter other critics
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`from exercising their First Amendment rights. See Highfields, 385 F. Supp. 2d at 980-81 (“When
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`word gets out that the price tag of effective sardonic speech [includes disclosure of the speaker’s
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`identity], that speech likely will disappear.”). Conversely, Sony Music made no mention of the
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`chilling effect of disclosure. Of course, this makes sense, given that the conduct at issue had little
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`First Amendment value. However, because disclosure of Skywalker’s identity here could
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`discourage other bloggers from engaging in lawful, critical speech, the Highfields/Perry analysis is
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`more likely than Sony Music to focus the Court on striking the proper balance between competing
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`interests.
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`Accordingly, the Court concludes that the question of whether Skywalker’s identity may be
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`revealed should be considered under the Highfields standard.
`Highfields requires granting the motion to quash
` Highfields establishes a two-part test for determining whether to allow discovery seeking
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`the identity of an anonymous defendant: (1) The plaintiff must produce competent evidence
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`supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff
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`makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that
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`would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in
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`favor of the defendant. Id. 975-76.
`i.
`Plaintiff has arguably met its burden under the first prong. To establish a prima facie case
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`Evidence supporting a prima facie case
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`of copyright infringement, a plaintiff must show (1) ownership of a valid copyright, and (2)
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`violation by the alleged infringer of at least one of the exclusive rights granted to copyright owners
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`by the Copyright Act. See 17 U.S.C. § 501(a); UMG Recordings, Inc. v. Augusto, 628 F.3d 1175,
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`1178 (9th Cir. 2011). In proving ownership, the plaintiff must establish that it either authored the
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`asserted work, or that there has been a “transfer of rights or other relationship between the author
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`and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.” 4-13 NIMMER ON
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`COPYRIGHT § 13.01.
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`Case No.: 10-CV-05022-LHK
`ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRE-TRIAL ORDER RE: MOTION TO
`QUASH
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`For the Northern District of California
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`Case5:10-cv-05022-LHK Document129 Filed11/09/11 Page12 of 16
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`Here, Magistrate Judge Lloyd found that Plaintiff established that “it is the author of the
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`BWSM and owns the copyright for it.” ECF No. 90 at 5. The Magistrate Judge apparently relied
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`on the declaration of Plaintiff’s Chairperson, Ashwani Dhall, which states: “Art of Living authored
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`and published an informational booklet entitled the Breath Water Sound Manual in 2003, which
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`Art of Living subsequently registered with the United States Copyright Office, Registration No.
`TX0007240203.” ECF No. 40 ¶ 37.5 The Magistrate Judge also found that Skywalker’s admission
`that he had published the BWSM was sufficient to show copying. ECF No. 90 at 6.
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`Skywalker argues that Plaintiff may not rely on testimony that “merely recites the ultimate
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`legal conclusion that [Plaintiff] ‘authored the BWSM” in establishing copyright ownership. ECF
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`No. 119 at 4. However, Skywalker offers no evidence rebutting Plaintiff’s claim to authorship of
`the BWSM.6 Nor does he cite any case holding that the declaration of an individual with personal
`knowledge of the work’s authorship is insufficient to establish ownership. See Capitol Records,
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`Inc. v. MP3tunes, LLC, No. 07 Civ. 9931, 2011 WL 3667335, at *13 (S.D.N.Y. Aug. 22, 2011)
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`(noting in dicta that declarations from a record company’s employees were prima facie evidence of
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`Plaintiff alleges that it applied for a copyright registration for the BWSM on October 19,
`5
`2010, several weeks before filing this lawsuit. See FAC ¶ 51. A plaintiff is not barred from
`bringing an infringement action between the time the copyright application is filed and the
`Copyright Office’s issuance of the registration certificate. See, e.g., Dielsi v. Falk, 916 F. Supp.
`985, 994 n. 6 (C.D. Cal. 1996).
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` 6
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`In their motion for summary judgment, Defendants do attack