Can ISPs necessarily be required to expose anonymous copyright infringers? In an opinion touching on Digital Millennium Copyright Act (DMCA) subpoenas, First Amendment concerns, and fair use, the Northern District of California said no in this particular case, granting Twitter’s motion to undo a subpoena seeking to reveal information behind an anonymous poster. (In connection with DMCA § 512(h) Subpoena to Twitter, Inc., No. 20-80214 (ND Cal. June 21, 2022)). The anonymous figure at the center of the dispute is @CallMeMoneyBags, an anonymous Twitter user who posts criticism of wealthy people, especially those working in the fields of technology, finance and politics. Some of these criticisms are at the heart of this dispute.
In October 2020, @CallMeMoneyBags tweeted six times about private equity billionaire Brian Sheth. The tweets contained criticism of Sheth’s wealth and lifestyle as well as some salacious accusations; the tweets also included some images related to the story.
Soon after @CallMeMoneyBags posted the series of tweets about Sheth, a company called Bayside Advisory LLC—whose connection to Sheth or his associates remains unclear—contacted Twitter claiming to own the copyrights to those images. above. Additionally, Bayside asked Twitter to remove the photographs. In response to Bayside’s request, Twitter removed the disputed images, but left the text accompanying the tweets.
In November 2020, Bayside asked the Northern District of California Clerk to issue a DMCA Section 512(h) subpoena to Twitter to force the social media website to release identifying information about @CallMeMoneyBags. Section 512(h) of the DMCA (17 USC § 512(h)) provides that “a copyright owner or a person authorized to act on behalf of the owner may apply to the clerk of any United States district court to issue a writ of appearance at a service provider for the identification of an alleged infringer. Upon receipt of the issued summons, “the service provider shall promptly disclose” the requested information to the copyright owner, “notwithstanding any other statutory provisions.” 17 USC § 512(h)(5). Section 512(h) provides that the procedure for issuing and serving the summons is governed by the provisions of the Federal Rules of Civil Procedure governing the issuance, service, and execution of a duces tecum summons. 17 USC § 512(h)(6). This provision incorporates Federal Rule 45, which requires a court to “set aside or amend” a subpoena that “requests disclosure of privileged or other protected matters.” Powered. civil law Page 45(d)(3)(A)(iii). A recipient of a DMCA subpoena can then proceed to strike down on the grounds that the subpoena would require disclosure of First Amendment protected material. Thus, as is common in such disputes, although the subpoena request in this case was issued to obtain information identifying an alleged copyright infringer under the DMCA, the court framed the matter as a First Amendment rights issue for the anonymous word online and whether the copyright holder could make his required submission to compel the online provider to comply with the subpoena.
In response to Bayside’s request, Twitter filed a motion to strike down the subpoena, arguing that releasing such information on the anonymous poster would be a violation of their First Amendment rights. The magistrate initially handling the case issued an order giving @CallMeMoneyBags the opportunity to file evidence or appear anonymously in support of Twitter’s motion to strike down. Additionally, the Court ordered Twitter to send @CallMeMoneyBags a copy of that order to the email address associated with your Twitter account. After @CallMeMoneyBags failed to respond to the order, the magistrate in November 2021 granted Bayside motion to compel. The district court judge reviewed the magistrate’s ruling de novo and came to a different conclusion.
In its June 2022 dominant In granting Twitter’s motion to strike down, the California District Court noted that, in deciding whether to enforce the unmasking of an anonymous speaker, courts must engage in a two-step analysis. The first step requires that the party seeking to compel the unmasking demonstrate a prima facie case of its underlying claim, which was, in this case, a copyright infringement complaint. The second stage involves a balancing test that weighs the potential harm to the party requesting disclosure on the one hand against the speaker’s interest in anonymity on the other. As the court noted, even though @CallMeMoneyBags declined to appear in the action, the Ninth Circuit precedent allows Internet platforms to enforce the First Amendment rights of their users, based on the close relationship between the platform and its users and the “real hurdles” users face in asserting their right to anonymity.
In its analysis of Bayside’s successful prima facie case of copyright infringement, the Court considered whether the six @CallMeMoneyBags tweets in question and the use of the protected images constituted fair use. Despite the fact that fair use is an affirmative defense, the Court has analyzed it as if it were necessary to demonstrate its absence to establish a prima facie case of copyright infringement. After analyzing all four factors of fair use, the Court found that @CallMeMoneyBags’ use of the images was in fact fair use, and as such, Bayside failed to establish its prima facie case. In weighing the fair use factors, the court found that @CallMeMoneyBags’ use of the images in the context of comments about Sheth gave the photos new meaning (namely, “an expression of the apparent disgust of the ‘author for the lifestyle and moral compass of one-performers”), and thus was a transformative usage that “fits perfectly with (Copyright Act) examples of fair use, especially ‘critique’ and ‘comment’” As for the fourth factor, which asks what effect the use has “on the potential market or value of the copyrighted work”, Bayside had argued that it is a “strategic communications and consultancy firm” which “allows license the photographs for commercial exploitation.” The court concluded that the factor did not weigh in Bayside’s favor because of its “vague explanation of its business model,” the “suspicious circumstances” surrounding the incorporation of Bayside’s business and this motion of obligation, and the his inability to explain what the potential market for these licenses is, let alone how that market might be impacted by tweets like that of @CallMeMoneyBags.
Even with the first pass fair use finding, and despite Bayside’s objections, the court engaged in the second phase of the balancing test, again finding for @CallMeMoneyBags and Twitter. Here, the Court stated that the nature of @CallMeMoneyBags’ speech is a satirical and critical comment involving significant First Amendment interests given that exposing the Twitter user could subject him to retaliation (financial or otherwise) from Sheth or its associates. This is compounded by the fact that, as the court said, Bayside’s connection to Sheth is unclear. The Court said that perhaps limited disclosure subject to an order of protection might be feasible if the court was satisfied that there was no connection between Bayside and Sheth, which there was not – on this issue, the court commented that Bayside does not formed up to the month that tweets about Sheth were posted on Twitter, had no prior copyright, and no public information could be found about Bayside’s principals, personnel, physical location, or formation. Thus, the Court found that the balancing test weighed in favor of @CallMeMoneyBags’ interests in anonymity.
Some questions in this case remain unanswered, but with both rounds of the inquiry weighing in favor of Twitter and @CallMeMoneyBags, the Court has definitively answered one question: Can Bayside compel an unmasking of the anonymous copyright infringer in this case? The court said no, upholding Twitter’s motion to strike down and denying Bayside’s motion to compel.
This result gave all parties involved a small victory: @CallMeMoneyBags maintained their anonymity and avoided a potential infringement lawsuit; Twitter advanced its users’ First Amendment rights; and Bayside, through a series of legal maneuvers, forced Twitter to remove the images in question (though not the text of the posts) and retained some of its anonymity. While @CallMeMoneyBags anonymity lives to see another day, it’s important to acknowledge that the DMCA citation process does offer copyright holders the ability to expose anonymous infringers. This process is particularly powerful as it allows copyright holders to directly request subpoenas outside the confines of a lawsuit and requires service providers to promptly comply with such requests. However, as this particular case demonstrates, the power of the DMCA citation process does not go unnoticed; courts may examine the merits of a copyright infringement claim and will weigh a defendant’s First Amendment right to remain anonymous against a plaintiff’s right to use the judicial process to pursue a meritorious copyright infringement claim (balance test similar ones are used with subpoenas issued in other cases involving anonymous defendants, such as online defamation cases). Additionally, the court’s opinion in this case serves as a reminder that efforts to pursue an endgame around fair use or other legal protections will be scrutinized. Thus, @CallMeMoneyBags’ case makes it clear that the DMCA subpoena process for unmasking anonymous offenders is powerful, but not rampant.