Publisher Says No Duty To Reveal Grooveshark Source, Law Unclear

Referee blowing whistle

Can a music site sue to find out which of its employees used a blog post to accuse the company of piracy? The blog’s publisher says the anonymous commenter is a whistleblower whose identity should be protected by media shield laws. But it’s not that simple.

The issue is tied to a lawsuit in which the major music labels are suing streaming site Grooveshark for copyright infringement. The music companies say Grooveshark executives systematically encouraged the uploading of thousands of songs without permission.

As evidence, the music companies point to anonymous comments on Digital Music News such as: “We are assigned a predetermined amount of weekly uploads to the system and get a small bonus if we manage to go above that.”

Yesterday, Grooveshark’s lawyers responded by serving a subpoena on the site, demanding that it provide any information that would identify the anonymous commentator.

The site’s publisher, Paul Resnikoff, posted an impassioned letter this morning saying media shield laws protect him from having to reveal his “whistleblower” source.

The Grooveshark case began as a copyright cases but now a part of it turns on a tricky area of law at the intersection of media freedom and due process.

Media shield laws like the one Resnifkoff is claiming are a hot issue. Last month, a federal court awarded $2.5 million in libel damages to an investment bank after finding the defendant blogger didn’t meet the standard of “journalist” under Oregon law. (The ruling did not, as some reported, stand for the principle that bloggers are not journalists).

More broadly, the state laws in this area are a “patchwork” and “political quilt,” according to David Hudson Jr, a scholar at Vanderbilt’s First Amendment Center.

In the Grooveshark case, New York law will determine if the anonymous poster is a “source” whose identity can be protected. The law says that if the news is not confidential (as in this case), Digital Media News doesn’t have to divulge the source unless the Grooveshark executives can show the information is important to their defense and that it can’t be obtained elsewhere. For those who prefer legalese:

no professional journalist .. shall be adjudged in contempt .. [for] failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source.

This means that even if the commenter qualifies as a “source”, Grooveshark may still be able to override the privilege in order to prepare a defense. While the Constitutional right to face your accuser is a criminal law concept, its underlying principles apply to civil evidence as well.

There is also the question of whether the commenter is really a “whistleblower.”

Whistleblower laws are designed to protect civil servants from retaliation or to reward people who help the government enforce the law. They don’t offer blanket rights to remain anonymous.

Reuben Guttman, who heads a whistle-blowing practice at Grant & Eisenhofer in Washington, says that online tips and other issues related to free speech and the internet have yet to reach the Supreme Court. He adds, though, that would-be whistleblowers should tread carefully.

“You can’t just be a bomb thrower. You have to be judicious and thoughtful.”

Digital Media News claims that it disposes of all information associated with anonymous commenters within 48 hours. But even if the relevant information no longer exists, the court may still use the case to offer some guidance on the media shield issue.

Resnikoff has yet to say if he will challenge the subpoena in court.

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