from the send-in-the-experts dept
In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth’s mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.
The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside’s lawyer has fairly strenuously denied Sheth having any involvement.
Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag’s identify from being shared. The judge — somewhat oddly — said that the fair use determination couldn’t be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October…) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.
We were troubled by all of this, and it appears that so was the ACLU and the EFF, who have teamed up to tell the court it got this very, very wrong. The two organizations have filed a pretty compelling amicus brief saying that you can’t use copyright as an end-run around the 1st Amendment’s anonymity protections.
The First Amendment protects anonymous speakers from retaliation and other harms by allowing them to separate their identity from the content of their speech to avoid retaliation and
other harms. Anonymity is a distinct constitutional right: “an author’s decision to remain
anonymous, like other decisions concerning omissions or additions to the content of a publication,
is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protects
anonymity online, as it “facilitates the rich, diverse, and far-ranging exchange of ideas,” Doe v.
2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speaker
can use “one of the vehicles for expressing his views that is most likely to result in those views
reaching the intended audience.” Highfields, 385 F. Supp. 2d at 981. It is also well-settled that
litigants who do not like the content of Internet speech by anonymous speakers will often misuse
“discovery procedures to ascertain the identities of unknown defendants in order to harass,
intimidate or silence critics in the public forum opportunities presented by the Internet.” Dendrite
Int’l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).Thus, although the right to anonymity is not absolute, courts subject discovery requests
like the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as the
Magistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard when
the individual targeted is engaging in free expression. Under Highfields, courts must first
determine whether the party seeking the subpoena can demonstrate that its legal claims have merit.
Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speech
at issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm
unmasking may cause.
The filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:
The Magistrate further confused matters by suggesting that a fair use analysis could be a
proxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. This
suggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve a
similar case purely on fair use grounds, on the theory that Highfields “is not well-suited for a
copyright dispute” and “the First Amendment does not protect anonymous speech that infringed
copyright.”…That theory was legally incorrect. While fair use is a free-speech safety valve that helps
reconcile the First Amendment and the Copyright Act with respect to restrictions on expression,
anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover,
DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts to
unmask internet users who are engaged in commentary. In such cases, as with the blogger in
Signature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. They
thus raise precisely the same speech concerns identified in Highfields: the use of the discovery
process “to impose a considerable price” on a speaker’s anonymity….ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysis
alone to substitute for a full Highfields review gets the question precisely backwards, given the
doctrine’s “constitutional significance as a guarantor to access and use for First Amendment
purposes.” Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair use
prevents copyright holders from thwarting well-established speech protections by improperly
punishing lawful expression, from critical reviews, to protest videos that happen to capture
background music, to documentaries incorporating found footage, and so on. But the existence of
one form of speech protection (the right to engage in fair use) should not be used as an excuse to
give shorter shrift to another (the right to speak anonymously).
It also calls out the oddity of demanding that Money Bags weigh in, when its Bayside and whoever is behind it that bears the burden of proving that this use was actually infringing:
Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden of
demonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt.
No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claims
have merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden should
not shift to the anonymous speaker, for at least three reasons.First, constitutional rights, such as the right to anonymity, trump statutory rights such as
copyright. Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover,
fair use has an additional constitutional dimension because it serves as a First Amendment “safety
valve” that helps reconcile the right to speak freely and the right to restrict speech. William F.
Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo
Arts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create a
cruel irony: an anonymous speaker would be less able to take advantage of one First Amendment
safeguard—the right to anonymity—solely because their speech relies on another—the right to
fair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense that
merely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simply
as a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016).
Second, Bayside itself was required to assess whether the use in question was fair before it
sent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explain
that assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citing
Lenz., 815 F.3d at 1153: “a copyright holder must consider the existence of fair use before sending
a takedown notification under § 512(c)”)Third, placing the burden on the party seeking to unmask a Doe makes practical sense at
this early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside
presumably knows—though it has declined to address—the original purpose of the works. And as
the copyright holder, it is best positioned to explain how the use at issue might affect a licensing
market. While the copyright holder cannot see into the mind of the user, the user’s purpose is easy
to surmise here, and the same is likely to be true in any 512(h) case involving expressive uses.
With respect to the nature of the work, any party can adequately address that factor. Indeed, both
Bayside and Twitter have done so.
The filing also notes that this is an obvious fair use situation, and the judge can recognize that:
While courts often reserve fair use determinations for summary judgment or trial, in
appropriate circumstances it is possible to make the determination based on the use itself. See In
re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022
WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determined
during a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federal
district court dismissed a copyright claim—without leave to amend—at the pleading stage based
on a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v.
BMG Music Pub., 512 F.3d 522, 532–33 (9th. Cir. 2008) (affirming motion to dismiss, without
leave to amend, fair use allegations where three factors “unequivocally militated” against fair use).
See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal.
July 17, 2009), aff’d, 422 F. App’x 651 (9th Cir. 2011); Savage v. Council on Am.-Islamic Rels., Inc., 2008 WL 2951281 at *4 (N.D. Cal. July 25, 2008); City of Inglewood v. Teixeira, 2015
WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d
76, 82–83, 88 (S.D.N.Y. 2020), aff’d, 844 F. App’x 436 (2d Cir. 2021); Lombardo v. Dr. Seuss
Enters., L.P., 279 F. Supp. 3d 497, 504–05 (S.D.N.Y. 2017), aff’d, 729 F. App’x 131 (2d Cir.
2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin,
64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).These ruling are possible because many fair uses are obvious. A court does not need to
consult a user to determine that the use of an excerpt in a book review, the use of a thumbnail
photograph in an academic article commenting on the photographer’s work, or the inclusion of an
image in a protest sign are lawful uses. There is no need to seek a declaration from a journalist
when they quote a series of social media posts while reporting on real-time events.
And the uses by Money Bags were pretty obviously fair use:
First, the tweets appear to be noncommercial, transformative, critical commentary—classic
fair uses. The tweets present photographs of a woman, identified as “the new Mrs. Brian Sheth”
as part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealth
to “invest” in a new, young, wife. As the holder of rights in the photographs, Bayside could have
explained the original purpose of the photographs; it has chosen not to do so. In any event, it
seems unlikely that Bayside’s original purpose was to illustrate criticism and commentary
regarding a billionaire investor. Hence, the user “used the [works] to express ‘something new, with
a further purpose or different character, altering the first with new expression, meaning, or
message.’” In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user’s purpose
is transformative and, Bayside’s speculation notwithstanding, there is nothing to suggest it was
commercial.
The filing also calls out the magistrate judge’s unwillingness to consider Twitter’s own arguments:
Of course, there was a party in court able and willing to offer evidence and argument on
fair use: Twitter. The Magistrate’s refusal to credit Twitter’s own evidence, Order at 7-8, sends a
dangerous message to online speakers: either show up and fully litigate their anonymity—risking
their right to remain anonymous in the process—or face summary loss of their anonymity when
they do not appear. Order at 7. That outcome inevitably “impose[s] a considerable price” on
internet users’ ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2d
at 980-81. And “when word gets out that the price tag of effective sardonic speech is this high, that
speech will likely disappear.”
Hopefully the court reconsiders the original ruling…
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Filed Under: 1st amendment, anonymity, brian sheth, callmemoneybags, copyright, dmca 512, fair use, subpoena
Companies: aclu, bayside advisory, eff, twitter
