The United States District Court for the Northern District of California has ruled that the Digital Millennium Copyright Act (DMCA) does not override the First Amendment’s anonymous speech protections.
We obtained a copy of the decision for you here.
Attempts are often made, sometimes successfully, to expand DMCA’s use beyond its original scope, which already contains problematic provisions. But at least in this case, that involved an effort not only to remove copyrighted material from Twitter but more to the point to unmask a user all via a DMCA subpoena, this tactic has failed.
Related: How the DMCA has become one of the biggest threats to online speech
The involved parties were the anonymous user, @CallMeMoneyBags, billionaire Brian Sheth, whose photos showing him along with a woman who was allegedly in a relationship with him the user had posted; the owner of the photo’s copyright, little-known Bayside Advisory LLC (that claims to have no ties to Sheth); and, Twitter.
Twitter received a DMCA request to remove the images and eventually complied, but Bayside also wanted @CallMeMoneyBags unmasked.
This subpoena the social network decided to fight, turning to a federal magistrate judge, who in 2021 ruled against Twitter, basing the ruling on the user not appearing in court to present their case of fair use in posting the photos copyrighted by Bayside.
The case was covered by Reclaim The Net and Twitter persisted and went to the district court in a bid to have the magistrate’s court ruling thrown out, arguing – with the help of EFF and the ACLU Foundation of Northern California, – that the user’s First Amendment rights were ignored by focusing only on whether or not the copyrighted material use fell under the fair use rule.
The court has now decided to accept Twitter’s position and throw out Bayside’s subpoena based on the First Amendment anonymous speech provision granting a speaker protection regardless of the content of allegedly copyright-infringing material.
“It is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement,” a judge wrote.
The court was looking at whether Bayside’s subpoena would have legal justification in terms of unmasking the user, and then to strike a balance between how the process might harm the speaker as opposed to how it might benefit the proponent of unmasking.
The court found that Bayside did not pass either part of this “two-step” test that is used when the unmasking of anonymous online users crops up in legal cases.
The judge wrote:
“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.” § 512(h)(6). This provision incorporates Federal Rule 45, under which a court must “quash or modify” a subpoena that “requires disclosure of privileged or other protected matter.” Fed. R. Civ. P. 45(d)(3)(A)(iii). A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment. See, e.g., Signature Management Team, LLC v. Automattic, Inc., 941 F. Supp. 2d 1145, 1152–53 (N.D. Cal. 2013); In re Verizon Internet Services, Inc., 257 F. Supp. 2d 244, 263–64 (D.D.C. 2003), rev’d on other grounds, Recording Industry Association of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). The fact that the DMCA allows a potential copyright infringement victim to issue a subpoena to a service provider without first filing a lawsuit says nothing about whether courts should consider the interests of anonymous speakers in the same way they would in other situations.”
