The Volokh Conspiracy

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Free Speech

"Do Copyright Holders Get a Free Pass to Identify Alleged Infringers?"


From Paul Alan Levy (Public Citizen) (bullets and some paragraph breaks added):

[A] controversy over Twitter postings by CallMeMoneyBags … presents the latest challenge in the Northern District of California to the well established rule, first established in 2001 in Dendrite International v. Doe, previously followed in that district as well as in federal and state courts across the country,

  • that a would-be plaintiff claiming that its rights have been violated by anonymous online speech has to make a showing, supported by both legal argument and an evidentiary showing,
  • that it has a tenable claim before it gets to identify the anonymous speaker and thus obtain the ability to serve the speaker with a summons and complaint and litigate its claim to a conclusion, and
  • that assuming the plaintiff has made these showings, the court has to balance the right to enforce substantial claims through litigation against the prospective costs of breaching the right to speak anonymously.

The case arises in somewhat peculiar circumstances. Over a period of a few days in October 2020, a Twitter user using the handle "CallMeMoneyBags," who specialized in tweets about private equity figures, posted a series of photographs of nubile women to which he appended texts suggesting that Brian Sheth, a private equity billionaire, was now investing his wealth in such women (the tweets and photos appear at pages 3 to 5 here). A mysterious entity named Bayside Advisory, LLC, which appears to have been first formed in Delaware that same month, and was not even registered to do business in California until January 2021, served a DMCA takedown notice on Twitter, contending that the tweets infringed its copyright in the photos, and followed that notice with a subpoena that it obtained under section 512(h) of the DMCA, seeking to identify CallMeMoneyBags for the claimed purpose of enforcing its copyright.

Twitter objected to the subpoena and, when Bayside persisted, moved to quash on First Amendment grounds, expressing suspicion that Sheth himself was behind the DMCA takedown and subpoena, and insisting that Bayside make a showing that its copyright claim could surmount the anonymous user's potential fair use defense before the user's identification was compelled.  Bayside cross-moved to compel compliance.

The Magistrate Judge to whom the case was assigned initially ordered Twitter to give notice to the anonymous user so that she could, perhaps, retain counsel and articulate her own objections to the subpoena. When the anonymous user failed to take advantage of this opportunity, the Magistrate Judge ordered Twitter to provide the identifying information, reasoning that neither the fair use defense nor the "balancing" stage of the subpoena analysis could be applied properly unless the anonymous accused offender entered the case to provide evidence bearing on her purpose in using the photos or the harms that could befall her if she is identified.

Twitter has sought de novo review, and its position has been supported by EFF and the ACLU, which filed an amicus brief urging reversal of the magistrate judge's ruling and a grant of the motion to quash. Twitter and its amici argue that the magistrate judge got the fair use analysis wrong, but also that the magistrate judge should have quashed the subpoena based on the balancing stage alone, either because the copyright owner has the burden of proving that its interest in enforcement outweigh any possible First Amendment interests in anonymity (the EFF/ACLU argument), or because it is "self-evident that identification would [result in] public exposure of plaintiff's identity and the financial and other burdens of defending against a multi-count lawsuit." (Twitter's argument)

Bayside is defending the decision it secured, also supported by amicus briefs from the Copyright Alliance and from a coalition of photographers' organizations: Their arguments include the contentions that an Internet platform should never be allowed to invoke its users' possible fair use defenses as a basis for opposing enforcement of a DMCA subpoena, and that, because the defense of fair use supplants possible First Amendment objections to copyright infringement claims, no consideration should be given to the First Amendment right to speak anonymously. They argue that the court should apply the standard of the Sony Music case to decide whether the alleged infringer should be outed.

Public Citizen filed our own amicus brief taking an intermediate position between the two extremes asserted by Bayside and its amici on the one hand, and Twitter and our friends at EFF and the ACLU on the other. We take no position on whether, based on a proper analysis, the subpoena should be enforced. (Many thanks to Phil Malone at Stanford's Juelsgaard Clinic for collaborating on the amicus brief at a difficult time)….

A very interesting and important matter; go to Levy's post for more analysis, and more details on the arguments for and against each of these positions.