IN RE DMCA § 512(H) SUBPOENA TO TWITTER, INC.
Case No. 20-mc-80214-VC
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
June 21, 2022
ORDER GRANTING MOTION TO QUASH; DENYING MOTION TO COMPEL
In a series of six tweets accompanied by photos, an anonymous Twitter user who goes by @CallMeMoneyBags criticized Brian Sheth, a private-equity billionaire. Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account. Twitter has moved to quash the subpoena, arguing that revealing the user‘s identity would violate his First Amendment rights. Because Bayside has not made out a prima facie case of copyright infringement, and for the independent reason that the user‘s constitutional interest in anonymity outweighs Bayside‘s expressed interest in his identity (at least on this record), the subpoena must be quashed.
I
@CallMeMoneyBags (let‘s call him MoneyBags) is an anonymous Twitter user. Although his account currently boasts over sixteen thousand followers, at the time of the events leading to this dispute his following was considerably more modest, hovering between 350 and 400. Much of his publicly viewable content consists of criticism of wealthy people, particularly those who work in tech, finance, or politics (such as Jeff Bezos, Elon Musk, and Nancy Pelosi).
In late October 2020, MoneyBags turned his attention to Brian Sheth, a private equity billionaire. Over ten days, MoneyBags tweeted about Sheth six times, each time commenting on Sheth‘s wealth and
On October 29, just days after this string of tweets, an entity called Bayside Advisory LLC contacted Twitter, asserting that it had copyright ownership in the six photos and demanding that they be taken down. Four days later, Bayside registered its copyrights. Twitter ultimately took down the challenged photos (but left the text of the tweets in place). Bayside then came to court and obtained a subpoena requiring Twitter to provide information identifying the person behind MoneyBags‘s façade. Twitter objected, arguing that doing so would violate MoneyBags‘s First Amendment rights. Eventually, Twitter filed a motion to quash the subpoena and Bayside responded with a motion to compel a response to it.
The case was originally assigned to Magistrate Judge Donna Ryu, who issued an order offering MoneyBags an opportunity to file evidence in support of Twitter‘s motion to quash. Judge Ryu ordered Twitter to serve a copy of her order and all relevant briefing on the email address associated with MoneyBags‘s Twitter account and gave MoneyBags permission to appear anonymously. MoneyBags did not respond. Judge Ryu then denied the motion to quash and granted the motion to compel, noting that the court “lack[ed] a well-developed record” on which to find that MoneyBags was innocent of copyright infringement or to balance the competing interests of the parties involved. Twitter challenges that ruling here.
II
Normally, a motion to quash involves a subpoena for discovery connected to a pending lawsuit. But this case is different. Bayside requested a subpoena under the
“[A]n author‘s decision to remain anonymous, like other decisions concerning omissions or additions to the contents of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995). This protection applies with equal force to online speech. “As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation . . . [or] concern about social ostracism.‘” In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (alterations in original) (quoting McIntyre, 514 U.S. at 341–42). When adjudicating discovery requests that would unmask an anonymous speaker, then, courts must consider the First Amendment implications of disclosure—just as they would when adjudicating any other discovery request that risks infringing First Amendment rights.
Perry v. Schwarzenegger offers a roadmap for how this inquiry should play out. 591 F.3d 1147 (9th Cir. 2010); see In re Anonymous Online Speakers, 661 F.3d at 1174. In Perry, the Ninth Circuit reviewed a district court‘s decision requiring the proponents of a state ballot proposition to turn over internal communications relating to their campaign strategy. Perry, 591 F.3d at 1152. Upon recognizing the First Amendment interests at stake, the court balanced the plaintiffs’ interest in the disclosures against the constitutional burden that disclosure would impose on the defendants. Id. at 1162–65. The court issued a writ of mandamus vacating the district court‘s discovery order after finding that “discovery would likely have a chilling effect on political association,” while the plaintiffs “ha[d] not shown a sufficient need for the information.” Id. at 1165.
Operationally, the inquiry consists of two steps. First, the party seeking the disclosure must demonstrate a prima facie case on the merits of its underlying claim. Second, the court balances the need for the discovery against the First Amendment interest at stake. This resembles the analysis courts around the country have employed when adjudicating motions that would result in the unmasking of anonymous speakers. See, e.g., Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 760–61 (N.J. Super. Ct. App. Div. 2001); Highfields Capital Management, L.P. v. Doe, 385 F. Supp. 2d 969, 974–75 (N.D. Cal. 2005); see also Brief of Public Citizen as Amicus Curiae in Support of Neither Party, Dkt. No. 39-1, at 14–15. Thus, when adjudicating a subpoena or other request for compelled disclosure that would reveal the identity of an anonymous speaker, a court should (1) notify the speaker and provide them with an opportunity to (anonymously) defend their anonymity; (2) require the party seeking disclosure to make a prima facie showing on the merits of their claim; and (3) balance the equities, weighing the potential harm to the party seeking disclosure against the speaker‘s interest in anonymity, in light of the strength of the underlying claim.
IV
Bayside argues that three aspects of this case distinguish it from other motions in which a party seeks to unmask an anonymous speaker, making the aforementioned test inapplicable: (1) Bayside‘s subpoena arises under the Digital Millennium Copyright
A
The DMCA provides a streamlined procedure through which copyright holders may subpoena internet service providers (like Twitter) for information identifying an alleged copyright infringer. See
Bayside‘s reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker could assert their right to anonymity after their identity has been revealed; at that point, the damage will have been done. Fortunately, the statute does not compel (or permit) this result. Section 512(h) provides that “the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.”
B
Bayside next argues that, to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright‘s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability. As Bayside notes, while the First Amendment does not protect copyright infringement, “copyright law contains built-in First Amendment accommodations.” Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003). This has led some courts to eschew interest balancing in cases seeking to deanonymize alleged copyright infringers. See In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 882 (N.D. Cal. 2020) (noting that applying the two-step approach in the context
Consider a hypothetical not far afield from these facts. An anonymous blogger writes hundreds of blog posts criticizing a powerful political figure, Mr. X. In one post, the blogger includes a copyrighted image owned by Mr. X. If Mr. X were to sue for copyright infringement, the court would need to consider the interests on both sides—even if the blog post did not constitute fair use. The blogger‘s interest in anonymity (with respect to Mr. X) may be so great as to outweigh Mr. X‘s interest in enforcing his copyright.3
C
Finally, Bayside argues that MoneyBags‘s absence dooms Twitter‘s motion. But although MoneyBags‘s presence would be helpful, it is not necessary. There are many reasons why an anonymous speaker may fail to participate in litigation over their right to remain anonymous. In some cases, it may be difficult (or impossible) to contact the speaker or confirm they received notice of the dispute. Even where a speaker is alerted to the case, hiring a lawyer to move to quash a subpoena or litigate a copyright claim can be very expensive. The speaker may opt to stop speaking, rather than assert their right to do so anonymously. Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.
The Ninth Circuit has accordingly recognized that internet platforms can assert the First Amendment rights of their users, based on the close relationship between the platform and its users and the “genuine obstacles” users face in asserting their rights to anonymity. In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d 1179, 1183 n.2 (9th Cir. 2017). As a platform that permits anonymous posting, Twitter risks losing users if people learn that the company discloses users’ identities to anyone who asks. Moreover, Twitter‘s interest in this dispute aligns with that of MoneyBags; both have an interest in protecting MoneyBags‘s ability to speak his mind on Twitter without facing retaliation. Finally, there are genuine obstacles to MoneyBags‘s participation, given the expense of litigation and the lack of a contrasting economic incentive in this suit. Cf. Powers v. Ohio, 499 U.S. 400, 415 (1991) (“[T]here exist considerable practical barriers to suits by the excluded juror because of the small financial stake involved and the economic burdens of litigation.“). To be sure, MoneyBags may be better equipped to articulate his interest in maintaining anonymity in this context, but his failure to appear does not prevent the Court from considering First Amendment interests when adjudicating the motion, as it would do in a more typical case.
V
As explained above, to defeat Twitter‘s motion to quash, Bayside must first state a prima facie case of copyright infringement.
A
Copying does not violate the copyright laws if it constitutes fair use. Although fair use is colloquially called an “affirmative defense” to copyright liability, this is something of a misnomer because “[f]air use is not just excused by the law, it is wholly authorized by the law.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1151–52 (9th Cir. 2016); see
The copyright statute lays out four non-exclusive factors for evaluating whether a use constitutes non-infringing fair use. Courts are to consider:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
- Begin with the “purpose and character of the use.”
17 U.S.C. § 107(1) . In addition to considering the purpose of the use (whether, for example, it “is for criticism, or comment, or news reporting“), this factor asks whether the new work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 578–79. Put another way, this factor asks “whether and to what extent the new work is ‘transformative.‘” Id. (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)).
The use here—tweets by an unverified Twitter account with a small following that only garnered a handful of likes, retweets, or comments—is not commercial, a fact that “tips the scales in favor of fair use.” Google LLC v. Oracle America, Inc., 141 S. Ct. 1183, 1204 (2021). What‘s more, the use is transformative. Considered on their own, the copyrighted photos may have aesthetic value. But MoneyBags was not using the photos for their artistry.
- The second fair use factor—the nature of the copyrighted work—“recognizes that creative works are ‘closer to the core of intended copyright protection’ than informational and functional works.” Dr. Suess Enterprises, 983 F.3d at 455 (quoting Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997)). As a result, “fair use is more difficult to establish when the former works are copied.” Id. (quoting Penguin Books, 109 F.3d at 1402). In evaluating this factor, courts also consider whether the copied work was previously published. Id.
Bayside states that its photos were “first published in 2017 and 2020.”4 The fact that the photos were already published at the time of the copying weighs in favor of fair use. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir. 2003). Also weighing in favor of fair use is the fact that many of the photos appear to be candid shots in a public setting—the type of picture one would post to their Facebook or Instagram. See Katz, 802 F.3d at 1183.
On the other hand, a couple of the photos are somewhat more artistic. One photo, for example, depicts a woman standing in front of a mirror taking a selfie with her phone. The shot is taken by a third party, rather than the woman herself, and the lighting, positioning, and wardrobe appear to have been intentionally selected. Another photo is a self-portrait that, charitably construed, may have involved creative positioning of the subject‘s hair and deliberately applied makeup. That said, Bayside has made no attempt to provide evidence that the photographer “attempted to convey ideas, emotions, or in any way influence [the subject‘s]
pose, expression, or clothing.” Id. (Indeed, Bayside has not provided any information about the photographs, including who the photographer is, where the photos were taken, or the identity of the woman they feature.) At best, the second factor may tilt slightly in favor of Bayside due to the artistic elements of these latter photographs, although the factor is largely inconclusive.
- The third factor considers the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
17 U.S.C. § 107(3) . This factor is not particularly helpful in the context of a photograph or drawing that “is not meaningfully divisible,” as the entirework must be used to preserve any meaning at all. Seltzer, 725 F.3d at 1178; see also Katz, 802 F.3d at 1183-84. This factor is therefore neutral. - The fourth and final factor asks what effect the use has “upon the potential market for or value of the copyrighted work.”
§ 107(4) . Analysis of this factor requires courts to consider “not only the extent of the market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market” for the original and derivative works. Dr. Seuss Enterprises, 983 F.3d at 458 (internal quotations omitted) (quoting Campbell, 510 U.S. at 590).
When a use is transformative and non-commercial, it is difficult to infer market harm. In such a case, “it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it.” Campbell, 510 U.S. at 591. To make a prima facie case of copyright infringement in this context, Bayside must offer some explanation for how its financial interests in the copyrights could be harmed by a use like the tweets at issue here.
Bayside offers that it is a “communications and strategic advisory firm” that “licenses photographs for commercial exploitation.” But beyond this vague explanation of its business model, Bayside nowhere explains what the potential market for these licenses is, let alone how that market could be impacted by tweets like MoneyBags‘s. Further, Bayside‘s explanation of its business is hard to accept at face value given the suspicious circumstances surrounding this motion (more on that later). And Bayside declined an opportunity (offered at the hearing) to supplement the record with actual evidence of market harm. This factor therefore weighs in favor of fair use.
* * *
Taking into account all of these factors, Bayside has not established a prima facie case of copyright infringement.
B
Even if Bayside had made a prima facie showing of copyright infringement, the subpoena would still need to be quashed because the balance of equities tilts in MoneyBags‘s favor.
Considering “the nature of the speech” at issue, there is no question that significant First Amendment interests are at stake. In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011). The six tweets flagged by Bayside are best interpreted as vaguely satirical commentary criticizing the opulent lifestyle of wealthy investors generally (and Brian Sheth, specifically). For example, one tweet reads: “Good morning from Mrs. Brian Sheth #2. Life is good when you‘re a 44-year old private equity billionaire.” The tweet accuses Brian Sheth of having a mistress and links his infidelity to the broader class of “private equity billionaires,” suggesting that wealth (or working in private equity) corrupts. Unmasking MoneyBags thus risks exposing him to “economic or official retaliation” by Sheth or his associates. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341–42 (1995). And MoneyBags‘s interest in anonymity is heightened further by his other tweets, which discuss issues of political importance such as sexual harassment, tax enforcement, and corporate regulations.
This is where the mystery surrounding Bayside makes a difference. If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure
Rather than explaining these puzzling facts, Bayside‘s counsel simply filed a declaration stating that “Bayside is not and has not ever been owned or controlled by Brian Sheth.” The declaration also notes that Brian Sheth does not own, and has not ever owned, “any interest in the copyrights to the Photographs.”5 Even setting aside the fact that this declaration came from counsel, rather than a party with personal knowledge of its veracity, it raises more questions than it answers. Is Bayside owned or controlled by someone associated with Brian Sheth? Was Bayside formed in response to these tweets? How did Bayside come to acquire these copyrights, and from whom? When pressed at the hearing, Bayside‘s counsel, Lawrence Hadley, would not (or could not) expand on these vague assertions.
Mr. Hadley: I can say that—that the subject of the tweets has no ownership interest in Bayside. This is all set forth in an affidavit.
. . .
The Court: . . . [D]oes the subject of the tweets—Mr. Sheth, does he know anybody who is connected [to] Bayside?
Mr. Hadley: I don‘t know. I don‘t know who the person is, and I don‘t know who they know.
The Court: Okay. Who—can you name a person who is connected to this company called Bayside? Can you name—can you give me some names of people who operate or work for Bayside?
Mr. Hadley: My client contact is a person named Mr. Kaufman.
Dkt. No. 52 at 48.
Of course, even a weighty First Amendment interest may give way in the face of a strong interest on the other side. But here too, the Court is left scratching its head. It is not clear what Bayside has to gain from pursuing a copyright action against MoneyBags. Injunctive relief is
unavailable, as Twitter has already taken the photos down. Because Bayside registered the copyrights after the alleged infringement, it appears as though Bayside could recover only limited damages that are unlikely to cover the considerable expense of pursuing its copyright claims and no attorney fees. See
* * *
Twitter‘s motion to quash is granted and Bayside‘s motion to compel is denied.
IT IS SO ORDERED.
Dated: June 21, 2022
VINCE CHHABRIA
United States District Judge