Atlantic Recording Corp. has filed a petition in the New York State Supreme Court seeking to compel the internet message board Reddit to reveal who posted a link that directed the user to a pirated version of a song that hadn’t been released yet. The recording is named “Heathens,” performed by a hip-hop duo named 21 Pilots, and is part of the soundtrack to the movie Suicide Squad.
According to the papers Atlantic filed with the court, the leak resulted in substantial damages, because Atlantic was no longer able to execute its strategic promotional prerelease and, as a result, suffered a loss of sales. The filing seeks permission to subpoena Reddit in order to determine the IP address of the user who leaked the song. Atlantic argued that Reddit is the only entity that can tell who posted the link.
According to Atlantic, only a very tight inner circle of people had access to the completed song, including the members of 21 Pilots, their management organization, and select Atlantic employees.
This case brings up some intriguing questions:
What level of privacy does anyone have? In balancing the free-speech characteristic of the internet, should we—or our internet service providers—acquiesce to corporate concerns to hunt down people freely communicating? Or if we view “corporate concerns” more positively as “content providers,” does that change our view of the limits of free communication?
What should the punishment be for leaking intellectual property? The music industry has been caught between a rock and a hard place since the file-sharing application Napster opened the door to digital piracy. Industry workers seem to be tempted to gain notoriety by being the first to release, even at the cost of their jobs. Should works subject to copyright protection receive the protection of trade secrets, as well?
Who leaked the song? The 0’s and 1’s that comprised the song were located on a storage site called Dropfile.to—whose tagline is “Simple. Secure. Free. Anonymous.” Reddit, which hosted the link to Dropfile.to, is also opaque in the way in which it tracks its users; an email address is not required to join Reddit, or to post any content to it. Furthermore, Reddit’s Terms of Service states that no information on a user will be provided without a court order. So, conceivably, the leaker could have done his or her work at an internet café or library, and left no trace.
In opposition to Atlantic’s application for the subpoena, Reddit argues that because Atlantic doesn’t know whether the infringing account holder is an Atlantic employee (who would owe a contractual duty not to leak the song) or someone else like the band or manager (who might owe a fiduciary duty not to leak the song), Atlantic doesn’t necessarily have a claim against the account holder and isn’t entitled to his or her identity.
To me, Reddit’s argument is disingenuous. If the identity of the account holder—potentially revealed only to the judge—results in Atlantic not having a claim, then so be it; but Reddit’s argument that the account holder must remain unknown because Atlantic doesn’t know who the account holder is seems to undermine the purpose of pre-action discovery.
As far as solutions, I can only offer what I wrote about Quentin Tarantino’s leaked script for The Hateful Eight: drastically limit the amount of people who are privy to your unpublished intellectual property. It’s the only way to prevent a leak, or at least the best way to know who is responsible if there is a leak.
