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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Solers, Inc. v. John Doe

Civ. Act. No. 05-3779 (Sup. Crt. Dist. Columbia, August 16, 2006)

Court Quashes Subpoena Seeking Identity Of Anonymous Informant Accused Of Defaming Plaintiff

Court quashes subpoena, seeking identity of anonymous informant who falsely informed a trade association that plaintiff Solers, Inc. ("Solers") was infringing the copyrights of association members by using unlicensed software in its business operations.  Plaintiff was not entitled to such discovery because it had failed to state a valid claim for defamation, given its inability to allege facts sufficient to demonstrate it sustained actual injury from the anonymous informant's acts.  Notably, the trade association, the Software Information Industry Association ("SIIA"), had elected not to pursue claims against Solers based on this "tip."

Tipster Falsely Accuses Solers Of Using Unlicensed Software 

The SIIA is a trade organization that protects the intellectual property rights of member companies by combating software piracy.  Rewards are paid to those who report verifiable corporate piracy.  To encourage the submission of information concerning such activity, the SIIA accepts anonymous tips, and promises not to voluntarily disclose the identity of the tipsters.

An anonymous informant informed the SIIA that plaintiff Solers was using unlicensed software in its business operations.  In reliance on this tip, the SIIA accused Solers of copyright infringement.  After an investigation, however, in which Solers denied these charges, the SIIA elected not to pursue the matter further.

Plaintiff Not Entitled To Identity Because Of Its Failure To State Defamation Claim

Solers subsequently commenced a John Doe action against the anonymous informant, claiming his tip was defamatory, and tortuously interfered with Soler's business relations with its clientele.  Solers served a subpoena on the SIIA, seeking the identity of the tipster.  The SIIA  moved to quash, arguing that Solers had failed to make the showing necessary to obtain such relief.  The Court agreed, and quashed the subpoena.

The Court noted that other courts had applied varying standards to determine a plaintiff's ability to use a subpoena to obtain the identity of an anonymous speaker accused of defamation.  At a minimum, the plaintiff must state a valid claim for defamation to be entitled to such relief.  This, held the Court, Solers had failed to do.

According to the Court:

To establish a cause of action for defamation, the plaintiff must demonstrate: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.

In the case at bar, this mandated an allegation of actual harm.  The Court held that plaintiff had failed to meet this burden because, as noted above, the SIIA had elected not to pursue a copyright infringement action against Solers, and because plaintiff had not alleged that it had lost either business or profits as a result of this accusation of copyright infringement. 

As a separate ground for its decision to quash the subpoena, the Court held that plaintiff had failed to adequately demonstrate that it had exhausted alternative means of ascertaining the anonymous tipster's identity.  Solers' showing that it had searched its computer system for emails to and/or from the SIIA in an attempt to locate the tipster's identity was held insufficient, to meet this burden.

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