608 F.Supp.3d 868
N.D. Cal.2022Background
- An anonymous Twitter user (@CallMeMoneyBags, “MoneyBags”) posted six tweets criticizing billionaire Brian Sheth, each including a photo; the tweets were noncommercial political/satirical commentary.
- Shortly after the tweets, Bayside Advisory LLC registered copyrights in the six photos, issued DMCA takedown notices to Twitter, and obtained a §512(h) subpoena seeking MoneyBags’s identity.
- Twitter objected and moved to quash, arguing that disclosure would violate the user’s First Amendment right to anonymous speech; the magistrate judge originally denied the quash for lack of a developed record.
- The district court reviewed the quash de novo, adopting a two-step framework: (1) require a prima facie showing of copyright infringement (including that the use is not fair use), and (2) balance the need for disclosure against the speaker’s First Amendment interest.
- The court found Bayside failed to establish a prima facie infringement (fair use factors favored MoneyBags: noncommercial, transformative use; no market-harm evidence) and, independently, that the balance of equities favored preserving anonymity given the nature of the speech and suspicious, undeveloped facts about Bayside.
- Result: Twitter’s motion to quash granted; Bayside’s motion to compel denied.
Issues
| Issue | Plaintiff's Argument (Bayside) | Defendant's Argument (Twitter) | Held |
|---|---|---|---|
| Whether a §512(h) DMCA subpoena limits the court’s ability to consider First Amendment protections and quash on that basis | §512(h) mandates disclosure and preempts broader First Amendment quash considerations | §512(h) incorporates Rule 45 and does not strip courts of authority to quash subpoenas that require disclosure of protected speech | Court: §512(h) does not divest courts of Rule 45 authority; First Amendment quash motions are permitted |
| Standard for unmasking an anonymous online speaker | DMCA context eliminates the usual anonymous-speaker balancing or is governed by copyright/fair use alone | Apply two-step test: prima facie infringement (including fair use) then balance equities protecting anonymity | Court: apply the two-step framework (notify speaker, require prima facie showing, then balance) |
| Whether Bayside made a prima facie case of copyright infringement (i.e., that the tweets were not fair use) | Photographs were copyrighted and used without license; copyright registration supports claim | Tweets are noncommercial and transformative criticism/comment; fair use factors favor the speaker; Bayside provided no evidence of market harm | Court: Bayside failed to show prima facie infringement; fair use likely given transformation, prior publication, lack of market-harm evidence |
| Whether the balance of equities favors disclosure of the speaker’s identity | Bayside needs the identity to enforce copyrights and obtain remedies | Disclosure would chill anonymous political/critical speech and risk retaliation; Bayside’s proffered interest is weak and facts about Bayside are suspicious/undeveloped | Court: balances favor protecting anonymity; quash subpoena and deny compel |
Key Cases Cited
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (anonymous speech is protected by the First Amendment)
- In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 2011) (procedural framework and First Amendment protection for anonymous online speakers)
- Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (balancing discovery against First Amendment associational interests)
- Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016) (fair use is authorized by statute and bears on infringement analysis)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (four-factor fair use framework and focus on transformativeness)
- In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875 (N.D. Cal. 2020) (DMCA subpoena context and fair use considerations in unmasking disputes)
- Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013) (transformativeness can exist without physical alteration; new expressive content suffices)
- Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020) (case-by-case fair use analysis and eschewing bright-line rules)
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (publication of a work can weigh in favor of fair use)
- Signature Mgmt. Team, LLC v. Automattic, Inc., 941 F. Supp. 2d 1145 (N.D. Cal. 2013) (DMCA subpoena recipients may move to quash on First Amendment grounds)