Privacy V Intellectual Property Litigation: Preliminary Third Party Discovery on the Internet

Australian Bar Review, Vol. 25, p. 228, 2004

41 Pages Posted: 8 Dec 2004

See all articles by Nicolas Suzor

Nicolas Suzor

Queensland University of Technology - Faculty of Law

Abstract

The enforcement of Intellectual Property rights poses one of the greatest current threats to the privacy of individuals online. Recent trends have shown that the balance between privacy and intellectual property enforcement has been shifted in favour of intellectual property owners. This article discusses the ways in which the scope of preliminary discovery and Anton Piller orders have been overly expanded in actions where large amounts of electronic information is available, especially against online intermediaries (service providers and content hosts). The victim in these cases is usually the end user whose privacy has been infringed without a right of reply and sometimes without notice.

This article proposes some ways in which the delicate balance can be restored, and considers some safeguards for user privacy. These safeguards include restructuring the threshold tests for discovery, limiting the scope of information disclosed, distinguishing identity discovery from information discovery, and distinguishing information preservation from preliminary discovery.

Keywords: Intellectual Property, Privacy, Discovery, Preliminary Discovery, Third Party Discovery, Copyright Enforcement, Anton Piller, Norwich Pharmacal, FCR O15A

JEL Classification: K41, K19

Suggested Citation

Suzor, Nicolas, Privacy V Intellectual Property Litigation: Preliminary Third Party Discovery on the Internet. Australian Bar Review, Vol. 25, p. 228, 2004. Available at SSRN: https://ssrn.com/abstract=627786

Nicolas Suzor (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

GPO Box 2434
Brisbane, Queensland 4001
Australia

HOME PAGE: http://nic.suzor.net/

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