By Aaron Mackey
Copyright law cannot be used as a shortcut around the First Amendment’s strong protections for anonymous internet users, a federal trial court ruled on Tuesday.
The decision by a judge in the United States District Court for the Northern District of California confirms that copyright holders issuing subpoenas under the Digital Millennium Copyright Act must still meet the Constitution’s test before identifying anonymous speakers.
The case is an effort to unmask an anonymous Twitter user (@CallMeMoneyBags) who posted photos and content that implied a private equity billionaire named Brian Sheth was romantically involved with the woman who appeared in the photographs. Bayside Advisory LLC holds the copyright on those images, and used the DMCA to demand that Twitter take down the photos, which it did.
Bayside also sent Twitter a DMCA subpoena to identify the user. Twitter refused and asked a federal magistrate judge to quash Bayside’s subpoena. The magistrate ruled late last year that Twitter must disclose the identity of the user because the user failed to show up in court to argue that they were engaged in fair use when they tweeted Bayside’s photos.
When Twitter asked a district court judge to overrule the magistrate’s decision, EFF and the ACLU Foundation of Northern California filed an amicus brief in the case, arguing that the magistrate’s ruling sidestepped the First Amendment when it focused solely on whether the user’s tweets constituted fair use of the copyrighted works.
In granting Twitter’s motion to quash the subpoena, the district court agreed with EFF and ACLU that the First Amendment’s protections for anonymous speech are designed to protect a speaker beyond the content of any particular statement that is alleged to infringe copyright. So the First Amendment requires courts to analyze DMCA subpoenas under the traditional anonymous speech tests courts have adopted.
“But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases—and it is not true in a case like this,” the court wrote. “That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”
The district court then applied the traditional two-step test used to determine when a litigant can unmask an anonymous internet user. The first step requires a proponent of unmasking to show that their claims have legal merit. The second step requires courts to balance the harm to the anonymous speaker against the proponent of unmasking’s need to identify the user.
The district court ruled that Bayside failed on both steps.
First, the court ruled that Bayside had not shown that its copyright claims had merit, finding that the tweets at issue constituted fair use, largely because they were transformative.
“Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters,” the court wrote.
Second, the court ruled that there were significant First Amendment issues at stake because the tweets constituted “vaguely satirical commentary criticizing the opulent lifestyle of wealthy investors generally (and Brian Sheth, specifically).” The court ruled that identifying “MoneyBags thus risks exposing him to ‘economic or official retaliation’ by Sheth or his associates.”
In contrast, the court ruled, Bayside failed to show that it needed the information, particularly given that Twitter had already removed the copyrighted images from the tweets. Further, the court was suspicious that Bayside may have been using its DMCA subpoena as a proxy for Sheth, which the court described as a “puzzling set of facts” that Bayside had never fully explained.
In upholding the user’s First Amendment rights to speak anonymously, the district court also rejected the argument that because the user never showed in court to fight the subpoena, Twitter could not raise constitutional arguments on its users’ behalf. EFF and ACLU’s brief called on the court to ensure that online services like Twitter can always stand in their users’ shoes when they seek to protect their rights in court.
The court agreed:
There are many reasons why an anonymous speaker may fail to participate in litigation over their right to remain anonymous. In some cases, it may be difficult (or impossible) to contact the speaker or confirm they received notice of the dispute. Even where a speaker is alerted to the case, hiring a lawyer to move to quash a subpoena or litigate a copyright claim can be very expensive. The speaker may opt to stop speaking, rather than assert their right to do so anonymously. Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.
EFF is pleased with the district court’s decision, which ensures that DMCA subpoenas cannot be used as a loophole to the First Amendment’s protections. The reality is that copyright law is often misused to silence lawful speech or retaliate against speakers. For example, in 2019 EFF successfully represented an anonymous Reddit user that the Watchtower Bible and Tract Society sought to unmask via a DMCA subpoena, claiming that they posted Watchtower’s copyrighted material.
We are also grateful that Twitter stood up for its user’s First Amendment rights in court.
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