{"id":16438,"date":"2022-02-25T00:27:33","date_gmt":"2022-02-25T00:27:33","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/25\/aclu-eff-step-up-to-tell-court-you-dont-get-to-expose-an-anonymous-tweeter-with-a-sketchy-copyright-claim\/"},"modified":"2022-02-25T00:27:33","modified_gmt":"2022-02-25T00:27:33","slug":"aclu-eff-step-up-to-tell-court-you-dont-get-to-expose-an-anonymous-tweeter-with-a-sketchy-copyright-claim","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/25\/aclu-eff-step-up-to-tell-court-you-dont-get-to-expose-an-anonymous-tweeter-with-a-sketchy-copyright-claim\/","title":{"rendered":"ACLU & EFF Step Up To Tell Court You Don’t Get To Expose An Anonymous Tweeter With A Sketchy Copyright Claim"},"content":{"rendered":"

<\/a>\n<\/p>\n

\n

from the send-in-the-experts<\/i> dept<\/h3>\n

\nIn 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<\/a> with the username @CallMeMoneyBags<\/a>. 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.\n<\/p>\n

\nThe 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.\n<\/p>\n

\nEither 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<\/a> of Money Bags.\n<\/p>\n

\nWe 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<\/a>. The two organizations have filed a pretty compelling amicus brief<\/a> saying that you can’t use copyright as an end-run around the 1st Amendment’s anonymity protections.\n<\/p>\n

<\/p>\n

\nThe 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
\nother harms. Anonymity is a distinct constitutional right: \u201can author\u2019s decision to remain
\nanonymous, like other decisions concerning omissions or additions to the content of a publication,
\nis an aspect of the freedom of speech protected by the First Amendment.\u201d McIntyre v. Ohio
\nElections Comm\u2019n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protects
\nanonymity online, as it \u201cfacilitates the rich, diverse, and far-ranging exchange of ideas,\u201d Doe v.
\n2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speaker
\ncan use \u201cone of the vehicles for expressing his views that is most likely to result in those views
\nreaching the intended audience.\u201d Highfields, 385 F. Supp. 2d at 981. It is also well-settled that
\nlitigants who do not like the content of Internet speech by anonymous speakers will often misuse
\n\u201cdiscovery procedures to ascertain the identities of unknown defendants in order to harass,
\nintimidate or silence critics in the public forum opportunities presented by the Internet.\u201d Dendrite
\nInt\u2019l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).\n<\/p>\n

\nThus, although the right to anonymity is not absolute, courts subject discovery requests
\nlike the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as the
\nMagistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard when
\nthe individual targeted is engaging in free expression. Under Highfields, courts must first
\ndetermine whether the party seeking the subpoena can demonstrate that its legal claims have merit.
\nHighfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speech
\nat issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm
\nunmasking may cause.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nThe filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:\n<\/p>\n

<\/p>\n

\nThe Magistrate further confused matters by suggesting that a fair use analysis could be a
\nproxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. This
\nsuggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve a
\nsimilar case purely on fair use grounds, on the theory that Highfields \u201cis not well-suited for a
\ncopyright dispute\u201d and \u201cthe First Amendment does not protect anonymous speech that infringed
\ncopyright.\u201d…\n<\/p>\n

\nThat theory was legally incorrect. While fair use is a free-speech safety valve that helps
\nreconcile the First Amendment and the Copyright Act with respect to restrictions on expression,
\nanonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover,
\nDMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts to
\nunmask internet users who are engaged in commentary. In such cases, as with the blogger in
\nSignature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. They
\nthus raise precisely the same speech concerns identified in Highfields: the use of the discovery
\nprocess \u201cto impose a considerable price\u201d on a speaker\u2019s anonymity….\n<\/p>\n

\nndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysis
\nalone to substitute for a full Highfields review gets the question precisely backwards, given the
\ndoctrine\u2019s \u201cconstitutional significance as a guarantor to access and use for First Amendment
\npurposes.\u201d Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair use
\nprevents copyright holders from thwarting well-established speech protections by improperly
\npunishing lawful expression, from critical reviews, to protest videos that happen to capture
\nbackground music, to documentaries incorporating found footage, and so on. But the existence of
\none form of speech protection (the right to engage in fair use) should not be used as an excuse to
\ngive shorter shrift to another (the right to speak anonymously).\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nIt 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:\n<\/p>\n

<\/p>\n

\nBayside incorrectly claims that Twitter (and by implication, its user) bears the burden of
\ndemonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt.
\nNo. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claims
\nhave merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden should
\nnot shift to the anonymous speaker, for at least three reasons.\n<\/p>\n

\nFirst, constitutional rights, such as the right to anonymity, trump statutory rights such as
\ncopyright. Silvers v. Sony Pictures Entm\u2019t, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover,
\nfair use has an additional constitutional dimension because it serves as a First Amendment \u201csafety
\nvalve\u201d that helps reconcile the right to speak freely and the right to restrict speech. William F.
\nPatry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo
\nArts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create a
\ncruel irony: an anonymous speaker would be less able to take advantage of one First Amendment
\nsafeguard\u2014the right to anonymity\u2014solely because their speech relies on another\u2014the right to
\nfair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense that
\nmerely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simply
\nas a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016).
\nSecond, Bayside itself was required to assess whether the use in question was fair before it
\nsent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explain
\nthat assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citing
\nLenz., 815 F.3d at 1153: \u201ca copyright holder must consider the existence of fair use before sending
\na takedown notification under \u00a7 512(c)\u201d)\n<\/p>\n

\nThird, placing the burden on the party seeking to unmask a Doe makes practical sense at
\nthis early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside
\npresumably knows\u2014though it has declined to address\u2014the original purpose of the works. And as
\nthe copyright holder, it is best positioned to explain how the use at issue might affect a licensing
\nmarket. While the copyright holder cannot see into the mind of the user, the user\u2019s purpose is easy
\nto surmise here, and the same is likely to be true in any 512(h) case involving expressive uses.
\nWith respect to the nature of the work, any party can adequately address that factor. Indeed, both
\nBayside and Twitter have done so.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nThe filing also notes that this is an obvious fair use situation, and the judge can recognize that:\n<\/p>\n

<\/p>\n

\nWhile courts often reserve fair use determinations for summary judgment or trial, in
\nappropriate circumstances it is possible to make the determination based on the use itself. See In
\nre DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022
\nWL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determined
\nduring a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federal
\ndistrict court dismissed a copyright claim\u2014without leave to amend\u2014at the pleading stage based
\non a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v.
\nBMG Music Pub., 512 F.3d 522, 532\u201333 (9th. Cir. 2008) (affirming motion to dismiss, without
\nleave to amend, fair use allegations where three factors \u201cunequivocally militated\u201d against fair use).
\nSee also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal.
\nJuly 17, 2009), aff\u2019d, 422 F. App\u2019x 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
\nWL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d
\n76, 82\u201383, 88 (S.D.N.Y. 2020), aff\u2019d, 844 F. App\u2019x 436 (2d Cir. 2021); Lombardo v. Dr. Seuss
\nEnters., L.P., 279 F. Supp. 3d 497, 504\u201305 (S.D.N.Y. 2017), aff\u2019d, 729 F. App\u2019x 131 (2d Cir.
\n2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin,
\n64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).\n<\/p>\n

\nThese ruling are possible because many fair uses are obvious. A court does not need to
\nconsult a user to determine that the use of an excerpt in a book review, the use of a thumbnail
\nphotograph in an academic article commenting on the photographer\u2019s work, or the inclusion of an
\nimage in a protest sign are lawful uses. There is no need to seek a declaration from a journalist
\nwhen they quote a series of social media posts while reporting on real-time events.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nAnd the uses by Money Bags were pretty obviously fair use:\n<\/p>\n

<\/p>\n

\nFirst, the tweets appear to be noncommercial, transformative, critical commentary\u2014classic
\nfair uses. The tweets present photographs of a woman, identified as \u201cthe new Mrs. Brian Sheth\u201d
\nas part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealth
\nto \u201cinvest\u201d in a new, young, wife. As the holder of rights in the photographs, Bayside could have
\nexplained the original purpose of the photographs; it has chosen not to do so. In any event, it
\nseems unlikely that Bayside\u2019s original purpose was to illustrate criticism and commentary
\nregarding a billionaire investor. Hence, the user \u201cused the [works] to express \u2018something new, with
\na further purpose or different character, altering the first with new expression, meaning, or
\nmessage.\u2019\u201d In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v.
\nAcuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user\u2019s purpose
\nis transformative and, Bayside\u2019s speculation notwithstanding, there is nothing to suggest it was
\ncommercial.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nThe filing also calls out the magistrate judge’s unwillingness to consider Twitter’s own arguments:\n<\/p>\n

<\/p>\n

\nOf course, there was a party in court able and willing to offer evidence and argument on
\nfair use: Twitter. The Magistrate\u2019s refusal to credit Twitter\u2019s own evidence, Order at 7-8, sends a
\ndangerous message to online speakers: either show up and fully litigate their anonymity\u2014risking
\ntheir right to remain anonymous in the process\u2014or face summary loss of their anonymity when
\nthey do not appear. Order at 7. That outcome inevitably \u201cimpose[s] a considerable price\u201d on
\ninternet users\u2019 ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2d
\nat 980-81. And \u201cwhen word gets out that the price tag of effective sardonic speech is this high, that
\nspeech will likely disappear.\u201d\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nHopefully the court reconsiders the original ruling…\n<\/p>\n

\n