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home << Policy << auto aclu eff step up to tell court you don t get to expose an anonymous tweeter with a sketchy copyright claim

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Fri, 25 Feb 2022


ACLU & EFF Step Up To Tell Court You Don't Get To Expose An Anonymous Tweeter With A Sketchy Copyright Claim

Furnished content.


In 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 with the username @CallMeMoneyBags. 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.The 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.Either 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 of Money Bags.We 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. The two organizations have filed a pretty compelling amicus brief saying that you can't use copyright as an end-run around the 1st Amendment's anonymity protections.

The 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 andother harms. Anonymity is a distinct constitutional right: an author's decision to remainanonymous, like other decisions concerning omissions or additions to the content of a publication,is an aspect of the freedom of speech protected by the First Amendment. McIntyre v. OhioElections Comm'n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protectsanonymity online, as it facilitates the rich, diverse, and far-ranging exchange of ideas, Doe v.2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speakercan use one of the vehicles for expressing his views that is most likely to result in those viewsreaching the intended audience. Highfields, 385 F. Supp. 2d at 981. It is also well-settled thatlitigants who do not like the content of Internet speech by anonymous speakers will often misusediscovery procedures to ascertain the identities of unknown defendants in order to harass,intimidate or silence critics in the public forum opportunities presented by the Internet. DendriteInt'l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).Thus, although the right to anonymity is not absolute, courts subject discovery requestslike the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as theMagistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard whenthe individual targeted is engaging in free expression. Under Highfields, courts must firstdetermine whether the party seeking the subpoena can demonstrate that its legal claims have merit.Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speechat issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harmunmasking may cause.
The filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:
The Magistrate further confused matters by suggesting that a fair use analysis could be aproxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. Thissuggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve asimilar case purely on fair use grounds, on the theory that Highfields is not well-suited for acopyright dispute and the First Amendment does not protect anonymous speech that infringedcopyright....That theory was legally incorrect. While fair use is a free-speech safety valve that helpsreconcile the First Amendment and the Copyright Act with respect to restrictions on expression,anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover,DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts tounmask internet users who are engaged in commentary. In such cases, as with the blogger inSignature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. Theythus raise precisely the same speech concerns identified in Highfields: the use of the discoveryprocess to impose a considerable price on a speaker's anonymity....ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysisalone to substitute for a full Highfields review gets the question precisely backwards, given thedoctrine's constitutional significance as a guarantor to access and use for First Amendmentpurposes. Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair useprevents copyright holders from thwarting well-established speech protections by improperlypunishing lawful expression, from critical reviews, to protest videos that happen to capturebackground music, to documentaries incorporating found footage, and so on. But the existence ofone form of speech protection (the right to engage in fair use) should not be used as an excuse togive shorter shrift to another (the right to speak anonymously).
It 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:
Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden ofdemonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt.No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claimshave merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden shouldnot shift to the anonymous speaker, for at least three reasons.First, constitutional rights, such as the right to anonymity, trump statutory rights such ascopyright. Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover,fair use has an additional constitutional dimension because it serves as a First Amendment safetyvalve that helps reconcile the right to speak freely and the right to restrict speech. William F.Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 CardozoArts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create acruel irony: an anonymous speaker would be less able to take advantage of one First Amendmentsafeguardthe right to anonymitysolely because their speech relies on anotherthe right tofair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense thatmerely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simplyas a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016).Second, Bayside itself was required to assess whether the use in question was fair before itsent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explainthat assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citingLenz., 815 F.3d at 1153: a copyright holder must consider the existence of fair use before sendinga takedown notification under 512(c))Third, placing the burden on the party seeking to unmask a Doe makes practical sense atthis early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside presumably knowsthough it has declined to addressthe original purpose of the works. And asthe copyright holder, it is best positioned to explain how the use at issue might affect a licensingmarket. While the copyright holder cannot see into the mind of the user, the user's purpose is easyto surmise here, and the same is likely to be true in any 512(h) case involving expressive uses.With respect to the nature of the work, any party can adequately address that factor. Indeed, bothBayside and Twitter have done so.
The filing also notes that this is an obvious fair use situation, and the judge can recognize that:
While courts often reserve fair use determinations for summary judgment or trial, inappropriate circumstances it is possible to make the determination based on the use itself. See Inre DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determinedduring a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federaldistrict court dismissed a copyright claimwithout leave to amendat the pleading stage basedon a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v.BMG Music Pub., 512 F.3d 522, 532-33 (9th. Cir. 2008) (affirming motion to dismiss, withoutleave to amend, fair use allegations where three factors unequivocally militated against fair use).See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal.July 17, 2009), aff'd, 422 F. App'x 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, 2015WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d76, 82-83, 88 (S.D.N.Y. 2020), aff'd, 844 F. App'x 436 (2d Cir. 2021); Lombardo v. Dr. SeussEnters., L.P., 279 F. Supp. 3d 497, 504-05 (S.D.N.Y. 2017), aff'd, 729 F. App'x 131 (2d Cir.2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin,64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).These ruling are possible because many fair uses are obvious. A court does not need toconsult a user to determine that the use of an excerpt in a book review, the use of a thumbnailphotograph in an academic article commenting on the photographer's work, or the inclusion of animage in a protest sign are lawful uses. There is no need to seek a declaration from a journalistwhen they quote a series of social media posts while reporting on real-time events.
And the uses by Money Bags were pretty obviously fair use:
First, the tweets appear to be noncommercial, transformative, critical commentaryclassicfair uses. The tweets present photographs of a woman, identified as the new Mrs. Brian Shethas part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealthto invest in a new, young, wife. As the holder of rights in the photographs, Bayside could haveexplained the original purpose of the photographs; it has chosen not to do so. In any event, itseems unlikely that Bayside's original purpose was to illustrate criticism and commentaryregarding a billionaire investor. Hence, the user used the [works] to express 'something new, witha further purpose or different character, altering the first with new expression, meaning, ormessage.' In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v.Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user's purposeis transformative and, Bayside's speculation notwithstanding, there is nothing to suggest it wascommercial.
The filing also calls out the magistrate judge's unwillingness to consider Twitter's own arguments:
Of course, there was a party in court able and willing to offer evidence and argument onfair use: Twitter. The Magistrate's refusal to credit Twitter's own evidence, Order at 7-8, sends adangerous message to online speakers: either show up and fully litigate their anonymityriskingtheir right to remain anonymous in the processor face summary loss of their anonymity whenthey do not appear. Order at 7. That outcome inevitably impose[s] a considerable price oninternet users' ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2dat 980-81. And when word gets out that the price tag of effective sardonic speech is this high, thatspeech will likely disappear.
Hopefully the court reconsiders the original ruling...

Read more here

posted at: 12:00am on 25-Feb-2022
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