"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.

Comments

[Bruce Hayden]

One question that I would have, is whether Sheth/Dendrite showed ownership of the photos. Because that is, of corse, required for a copyright case, AND, ownership might suggest that the claims of his dalliances might be accurate, thus possibly making the photos newsworthy.

[rsteinmetz]

The motion acknowledges that Bayside files for registration of the photos, but as far as I can tell no one has established who the author of the photos is or if not Bayside whether the copyrights were properly transferred to bayside.

If I remember correctly no real proof of ownership is required to register a copyright.

It also occurs to me that a billionaire could have easily purchased the copyrights to random Facebook photos for a small amount of money. At least two of the photos seem to have been taken is the same private plane.

It seems to me that the court should have at least inquired into the ownership of the copyrights in the photos.

[Squirrelloid]

I would think plaintiff should need to prove ownership by either (1) proving they took the photos, or (2) prove they bought the rights to the photos from the original owner (or ultimately from the original owner via intermediary), and the alleged original owner must prove they took the photos.

If they can't prove ownership, the copyright suit should fail outright, so that really needs to happen before anything else.

Ofc, IANAL, but that's the only way to stop legal shenanigans by non-owners.

[great Unknown]

If these are Sheth's current investments, let me assure him that the assets are artificially inflated.

[Dilan Esper]

You win the thread.

[Bored Lawyer]

Other than the DMCA, why is this question limited to copyright claims? If the billionaire was claiming the photos or their accompanying text are false and defamatory, would you also not need such an analysis?

[Stephen Lathrop]

If copyright holders cannot know who is using copyrighted materials, how can they know how the materials are being used, let alone that they are being used fairly? Condition all claims to fair use on disclosure to the copyright holder of the identity of the claimant. How can there be justice or equity when the copyright holder must self-identify, but the fair use claimant gets anonymity?

[Squirrelloid]

Context is sufficient to determine this is fair use. He's using the photos to criticize Brian Sheth (a reasonably public figure). No need to unmask the speaker.

And how do we know this random company is actually the copyright holder?

[Bored Lawyer]

Context is sufficient to determine this is fair use. He's using the photos to criticize Brian Sheth (a reasonably public figure). No need to unmask the speaker.

True that you (generally) don't need identity for fair use. But that does not mean that this criticism is fair use. The criticism here is not of the photography but what the person in the photos is doing. Offhand, does not sound like fair use.

And how do we know this random company is actually the copyright holder?

Same way you would do in litigation generally. Someone attests he or she created the work (here a photographer), which makes him or her an author under the Copyright Act, and then there is a chain of assignments. Not really hard to do at all.

[Squirrelloid]

Why does the criticism have to be of the photography? He's using the photographs as evidence to criticize Sheth.

Read Twitter's motion to quash, i found their fair use analysis persuasive.

Actual Copyright holder/
As i understand it, we don't have those attestations.

"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 from Twitter's motion to quash: "Twitter’s counsel has attempted to learn the connection between Bayside and Sheth or the images at issue but has been unsuccessful."

ie, the plaintiff doesn't seem to have made any claims about how they came to own copyright in the photos at all.

[Squirrelloid]

Also, the implication to me seems to be that Sheth took the photos, and he's criticizing their existence (because if Sheth's lifestyle was not as he's criticizing, the photos wouldn't exist).

[Davy C]

Are you kidding? The true plaintiff apparently created a brand new company just so they wouldn't need to reveal their identity.

[David Nieporent]

If copyright holders cannot know who is using copyrighted materials, how can they know how the materials are being used, let alone that they are being used fairly?

One can conceive of scenarios in which the identity of the speaker is relevant to the fair use analysis, but those scenarios would appear to be in the small minority. The fair use factors do not generally turn on who is using the copyrighted work, but how the work is being used.

[Bored Lawyer]

Curious whether you think this is a fair use.

And whether this is "criticism" as contemplated by the fair use statute, 17 USC 107. I always understood criticism as that directed to the copyrighted work. Not using the work to criticize the subject of the work. (E.g., a compromising photograph of a public person.)

[Stephen Lathrop]

BL, you appear to be invoking the time-honored basis of fair use, which seems to be under legal attack via an attempt to persuade courts to read the law otherwise. The principle by which the old standard gets discarded is a mystery to me. Maybe something similar to the rethinking of libel after realizing you couldn't expect Joe Keyboard to respect libel law.

[David Nieporent]

I don't have the foggiest idea whether this is fair use; the factual record is almost nonexistent. We don't know who created the photos or why, or how they were originally used.

I think you're generally right about what criticism means in § 107, but as I'm sure you know criticism is only one item on a non-exhaustive list of purposes that can be fair use; and the fair use analysis doesn't really turn on which of those purposes it is, as opposed to whether the use satisfies the four fair use factors.

[Dilan Esper]

Right. Let's say anonymous Twitter user illustrates some silly political point they are making with a 2 second clip of Bill Murray saying something funny in Ghostbusters. Paramount (or whoever owns the thing) sues and seeks to unmask the Twitter user. Pretty clear they shouldn't be able to, right? The fair use is obvious.

OTOH, sometimes it won't be so obvious, and then we can talk about unmasking.

[Squirrelloid]

Twitter's fair use analysis from their motion to quash sounds persuasive to me. Clear case of fair use to criticize.

[Bored Lawyer]

No, it isn't. See my comments above.

[Bored Lawyer]

During the last campaign, then-President Trump attended an event in New Jersey, after being exposed to COVID, and later testing positive. He was criticized for that.

Suppose a photographer had taken his picture at that event. Do you think that anyone criticizing Trump for his recklessness can use that photo without the photographer's permission?

For another Trump photograph copyright case (albeit not criticism) see here:

https://www.courthousenews.com/magazine-on-hook-for-photo-of-trump-crashing-wedding/

[Squirrelloid]

If the photo was the only (now) public evidence he attended the event, and the original photographer was using copyright law to suppress dissemination of that evidence (rather than publishing it himself), then yes, I'd consider it fair use.

[Stephen Lathrop]

Way to go, Squirrelloid. What you advocate would have deprived the world of some of the best images from the Spanish Civil War and WW II (Robert Capa).

Not to mention most of the documentary photographs covering the civil rights movement. And most of the music photography from the 60s and 70s. And on and on. Did you think the media which published those images were paying staff photographers to take all those pictures? Not how it worked, mostly.

Of course your point about suppression might seem relevant. Until you realize that without financial incentives to take photographs, professional photographers would not have given the world any images to suppress.

By the way, did I mention Henri Cartier-Bresson, Edward Weston, and Ansel Adams? Oh yeah, and Mathew Brady's Civil War photography. You remember Mathew Brady, right?

[Squirrelloid]

If they're taking the photographs with the intent to sell, then the suppression issue is never triggered.

[Squirrelloid]

Finally, i think you're confusing a key difference between those historical photographers and the imagined Trump photograph. The imagined Trump photograph is itself newsworthy, and the only way to cover the photograph is to show it. Those documentary photographs you mentioned show newsworthy things, but their existence as photos was not, in itself, newsworthy.

[Squirrelloid]

BTW, I take the twitter posts as commenting on the presumed original photographer (Steth). The criticism of his lifestyle is a criticism of the existence of the photos (which would not exist if his lifestyle were otherwise). So it is implicitly a criticism of the photos.

[Stephen Lathrop]

What a mess the courts are making of copyright law. In this decision a judge who knows nothing of photography asserts without insight that there is such a thing as a, "factual," photograph, devoid of creative expression. There are such things. Security cameras deliver images which fit that description. Especially the security cameras inside sealed bank vaults.

What the judge apparently does not understand is that photographs made by people holding cameras, and deciding where to point them, in what light, to record which subjects, and at what split-second times, are inherently creative. All of them are.

The judge could gain insight by attempting to use a camera to take a picture indistinguishable in fact from any of the allegedly, "factual," examples shown. The judge would literally have a better chance of painting an undetectable forgery of an old-masters painting.

There is nothing harder to counterfeit from scratch than an original photographic image taken by a person looking through a camera. Even studio photography of non-living subjects is damnably difficult to match after the subject matter has to be repositioned, or the camera moved, or the lighting has been struck, or the camera settings changed at all. That matching problem becomes orders of magnitude more difficult with candid photography of people, or of any outdoor images taken under natural light.

Assessing and using the qualities of light, whether indoor studio lighting, or outdoor natural lighting, is of course a creative skill at the very heart of photographic expressive success. Nothing matters more. Nothing relating to photography is so little understood outside the field. Inability to master those skills is a major reason why there is a market for stealing existing images, instead of creating serviceable substitutes for whatever purpose.

Unfortunately the difficulty to make an expertly composed and lighted image does not mean that a recorded digital image is difficult to steal. To steal it is simplicity itself. In a copyright case, whether stealing is taking place ought to get legal attention.

Analyses of fair use and transformative use applied in this decision express standards so broad that they exclude almost nothing that an infringer might attempt. More-appropriate analyses would not wander so far afield from specific creative content. If it is legally legitimate to disconnect questions of fair use and transformative use from considerations of the particular expressive content of a specific image—and search for them instead in the free-floating motives of a would-be image thief—you might as well just rule that photography—and probably every other graphic art—can never be copyrighted.

All that is about creative technique. It comes before you get to different questions—how to go about protecting the enterprise to identify, and the effort to photograph, specific subjects at specific times and places. At its best—or sometimes at its most lucky—that amounts to modern iconography. How many will undertake that effort and expense if every resulting opportunity to monetize the result comes under question? What in copyright law authorizes (or qualifies) a judge to presume to define the original intent of an expressive image? Without that ability, what would empower a judge to pronounce a subsequent use different, and thus transformative?

No-copyright-for-anything is a wished-for objective, pursued by many internet fans. That has created a constituency for building slippery slopes under more-traditional copyright interpretations. Of course I get that.

Prior to the internet, millions of people were well-served by incentives copyright law supplied for artistic creation. Many of those now expect they will be better served if they can simply steal whatever they can see.

I doubt it will work out that way. I suspect events will show that courts which abet that pressure are both unfair to creators, and unwise about guarding social interests to enjoy the fruits of creativity.

[David Nieporent]

Lathrop

What a mess the courts are making of [what Lathrop thinks constitutes] copyright law.

Among other things, Lathrop criticizes "this decision" for making an assertion about the creativity of a photograph, despite the fact that there hasn't been a relevant decision that addresses that issue. (My assumption is that Lathrop is confusing a party or amicus brief with the court's decision, but I can't even figure out which brief he could be misinterpreting as the court's decision here.)

What the judge apparently does not understand is that photographs made by people holding cameras, and deciding where to point them, in what light, to record which subjects, and at what split-second times, are inherently creative. All of them are.

Again, I don't know what judge you're talking about — but nobody "does not understand" that. If she thought otherwise, then the photographs wouldn't be subject to copyright in the first place, and the entire case would be moot.

But despite your whining special pleading on behalf of photographers, your arguments in that area are mostly irrelevant. A professional photograph may make dozens of creative choices in staging and taking a photo. A guy with an iPhone might just grab his device and snap a picture without any conscious decisions beyond, "Hey, that thing over there looks cool; I want a picture of it." That it might be difficult to perfectly recreate either the first photo or the second has little or nothing to do with any legal issue. (It might apply to the fourth factor — effect on the market — but that seems particularly irrelevant in this context; the putative infringement here does not appear to in any way turn on creative issues such as lighting choices.)

Analyses of fair use and transformative use applied in this decision express standards so broad that they exclude almost nothing that an infringer might attempt.

As noted, there was no such analysis in any "this decision." But setting that aside, the fact that you don't like the state of copyright law in the U.S. does not mean that judges are getting it wrong.

What in copyright law authorizes (or qualifies) a judge to presume to define the original intent of an expressive image?

Article III of the U.S. Constitution and 17 U.S.C. § 107.

Do you not understand how a judicial system works? Each side presents evidence and arguments, and then judges or juries decide which side's are more compelling. It's the same thing that authorizes and qualifies a judge or jury to decide the intent of the parties in forming a contract or the intent of a person in killing someone else.

[Stephen Lathrop]

Nieporent, thanks for correcting me about misuse of, "decision."

Your comment about a judge assigning original intent to a photograph runs into a problem. It has long been customary for photographers to shoot and archive images for use in stock photography. In such cases, the original intent is to sell use of the image again and again, to anyone and everyone who can be persuaded to pay for it, and to withhold use of the image from anyone who refuses to pay. And always, to enter into deals negotiated to specify for what purpose the image will be used, and which rights get sold, and which rights the photographer retains. The price paid for use of the image is heavily dependent on what agreed-upon use has been chosen.

Where do you see justification for a judge to get into that and say something like, "Well, you did not intend that picture to be used to criticize so-and-so, which is what this guy used it for, so no infringement."

[David Nieporent]

Where do you see justification for a judge to get into that and say something like, "Well, you did not intend that picture to be used to criticize so-and-so, which is what this guy used it for, so no infringement."

I repeat: Article III of the U.S. Constitution, and 17 U.S.C. § 107.

The former is the basis for a judge adjudicating a case or controversy, and the latter defines the substantive issues for the judge to decide. The real issue here is simply that you don't like the concept of fair use, and so you don't think courts should be in the business of ruling that a particular use of a copyrighted work is fair use. But that is, in fact, their job. Of course, you and anyone else can always criticize a decision in a particular instance as incorrect. But if one is doing that, one needs to grapple with the actual legal standard to see if the court applied it correctly, not just say, "What gives them the right to do that?"

To address your specific point, I don't know why you don't understand that "stock photography" can in fact be the purpose/original intent of the photograph. And it seems like it would only be on rare occasions that the unlicensed use of a stock photograph would be fair use — precisely because the raison d'être of a stock photograph is to license it for people to use.

[YepThatGuy]

This was a really well argued position. I really liked "would literally have a better chance of painting an undetectable forgery of an old-masters painting." You'd make a great expert witness on this particular point.

[Stephen Lathrop]

Each side presents evidence and arguments, and then judges or juries decide which side's are more compelling. It's the same thing that authorizes and qualifies a judge or jury to decide the intent of the parties in forming a contract . . .

Wow. What, "side," except the artist's, do you suppose even exists in the case of presenting evidence to determine original photographic intent? Your presumption may apply to cases where a contract exists—where a photographer is working according to terms negotiated with a client. That would at least set down for examination possibly contested evidence, with rivals for the judge to choose between.

Nothing like that typically applies with regard to stock photography, artistic photography, news photography, sports photography, food photography, celebrity photography, weather photography, war photography, or any of a zillion other kinds of photographic activity where a photographer may choose to work without a client, at his own initiative. And of course those own-initiative cases are the ones where the photographer himself typically retains complete, unfettered claim to the image copyright—which is to say the kinds of cases, as far as we know, which are like the one under discussion here.

In those own-initiative instances a judge who presumes to take any evidence from anyone but the photographer can only be acting arbitrarily. Nobody else has any cognizable capacity to say what the photographer intended. I hope you are not suggesting the judge ought to take on an adversary role, and contradict on his own the evidence the photographer provides.

The very last opinion to consult about photographic intent would be the inherently-conflicted opinion of the guy who came on the scene after the image was made. And who is party to the case only because he is trying to avoid paying a royalty while using the image.

Nieporent, is that really how you think the judicial system is supposed to work? Or are you maybe struggling a bit in this case because you do not understand the activity the law purports to govern?

[David Nieporent]

No, I'm not struggling because I do not understand; you are struggling because you think that knowing what an aperture or an f-stop is has anything to do with a legal question.

Wow. What, "side," except the artist's, do you suppose even exists in the case of presenting evidence to determine original photographic intent?

Like I said: "[D]o you not understand how a judicial system works? Each side presents evidence and arguments, and then judges or juries decide which side's are more compelling. It's the same thing that authorizes and qualifies a judge or jury to decide the intent of the parties in forming a contract or the intent of a person in killing someone else."

If a homicide defendant argues that he shot someone in self-defense, do you think the prosecutor isn't (or shouldn't be) allowed to argue that it was actually premeditated murder, because only the defendant has the cognizable capacity to say what he intended? We — in both daily life and in the legal system — assess people's motives and intent based on external evidence, such as their observed behavior and the context in which they took their actions.

It is not hard to assess the difference between a photo a parent shot of his daughter at her soccer game and a photo shot by a stock photographer and a photo shot by a wedding photographer and a photo shot by a tourist and a photo shot in Ukraine by a freelance photojournalist.

Sometimes there are ones in gray areas, yes. That's inevitable, since this life is analog rather than binary. There are other factors for the court to consider. And maybe sometimes the court will get it wrong. Sometimes the ref says that it was down by contact when it was really a fumble. That's life.

[Stephen Lathrop]

Nieporent, so you do insist that even in the absence of any other evidence about purpose, the judge is empowered to decide the purpose question as an advocate for fair use, and against the testimony of the artist about his own purpose. Do you know of any other kind of case where the judge is empowered to oppose uncontested evidence?

[David Nieporent]

Once more, lots of word soup. Judges are not "advocates for" anything. And of course a judge can find even uncontested evidence to be incredible and unworthy of belief.

[tkamenick]

If the anonymous person doesn't care to defend themselves and their anonymity, I don't see why the suit can't proceed and the person be identified.

[David Nieporent]

While that's a reasonable statement as a general principle, it's also possibly the case that the guy didn't enter the case not because he "doesn't care," but because he couldn't find a lawyer he could afford.

(Sure, ultimately that's at issue in all civil litigation, and we don't excuse default just because the person can't afford an attorney. I'm only talking about judging them as "not caring.")

[YepThatGuy]

Anonymous person doesn't want to admit to hacking the icloud account of a billionaire.

[Stephen Lathrop]

It is not hard to assess the difference between a photo a parent shot of his daughter at her soccer game and a photo shot by a stock photographer and a photo shot by a wedding photographer and a photo shot by a tourist and a photo shot in Ukraine by a freelance photojournalist.

Since you are so informed about photography, please answer me on these questions. Which of those are not like the others? Which are not protected alike with the others? When you say it is not hard to assess the differences, what differences do you think you see?

[David Nieporent]

None of those are not like the others, or perhaps all of them are not like each other. Your question doesn't make sense to me; they're all protected by copyright. But the fair use analysis could obviously come out differently, since it's context and fact specific. Effect on the market for the original is one of the key factors, and it's unlikely that the kid's soccer game one has a market. For the wedding photographer, if you're copying his photo to comment on how bad a photographer he is, it's probably fair use. If you're using a photo from the Ukraine in your newspaper article about the war, it's probably not fair use. If you're using it alongside a photo from the Civil War, and one each from WW1, WW2, Vietnam, and Iraq in an article about changes in photojournalism, it may well be fair use.

And, of course, it always depends on whether one uses part or all of a copyrighted work.