When US District Judge Katherine Polk Failla of the Southern District of New York quashed the DMCA subpoenas that transgender activist Liz Fong-Jones had used in an attempt to unmask Kiwi Farms users, Fong-Jones also had some harsh words for the kind of speech those users had engaged in.
But in the end, it was their right to remain anonymous that was protected by the court.
The judge made it clear that she was not endorsing the speech of the seven pseudonymous users, whose posts were examined in the ruling.
However, she turned to the constitution and added that fair use is rooted in the First Amendment, which “protects even the speech that we might find to be odious.”
The dispute started in February when Fong-Jones’s legal representatives demanded that Kiwi Farms remove posts using a professional headshot in a critical way, and refused to accept the site’s argument that it was fair use.
After Kiwi Farms sued in March seeking a declaratory judgment, Fong-Jones obtained three DMCA subpoenas in late March and early April to get the identities of the users who had created the posts.
But Failla found that the uses of the headshot in those posts were fair use, and quashed the subpoenas.
The case is Lolcow LLC v. Zhen Elizabeth Fong-Jones, and the ruling was made from the bench on August 27, with the transcript becoming available on September 1.
Kiwi Farms owner Joshua Moon has said that the subpoenas targeted 10 users, and that lawyers from Randazza Legal Group represented seven of them whose posts were examined in the ruling.
The judge said that the case “boils down to whether each of the challenged reproductions constitutes fair use,” and concluded that each one did.
Two users added the phrase “consent accidents do happen occasionally” to a cropped headshot. Failla found that the text was “sufficiently transformative to constitute fair use,” adding that it supplied criticism and commentary, and was noncommercial.
Another user altered the headshot into a caricature, retouching it, and added text criticizing the original as heavily Photoshopped. Failla found that the alteration materially transformed the image. The activist argued that the critical text appeared around the picture, rather than on top of it, but the judge said that did not matter.
“Criticism and commentary appearing in text surrounding the headshot rather than superimposed onto it like a more traditional meme, does not alter the Court’s ability to consider that text for purposes of the fair use analysis,” the ruling reads.
Failla found fair use in a zoomed crop of the headshot accompanied by a remark, and in a four-panel “DLSS 5 on/off” meme comparing the headshot with a scene from the 1985 film Brazil.
The judge found that placing the two images together supplied transformative criticism and commentary, and that the use was noncommercial and did not harm the market for the original.
Two other posts were reproductions of social-media and LinkedIn content, and while the judge found little transformative about a straight reproduction of the portrait, she said that factual or informational use of an already-published work is more likely to be fair use, and found no meaningful market substitution.
The subpoenas sought extensive personal and financial data of the users, including IP addresses, email and physical addresses, and transaction information.
Although the judge found that the posts were fair use, she also said that Fong-Jones’s efforts to have them removed were not unreasonable, and therefore denied the request to stop the activist from sending future DMCA notices or subpoenas.
Failla also denied Lolcow’s request for fees and costs, finding that Fong-Jones had taken reasonable steps to avoid imposing an undue burden.
Kiwi Farms noted that the judge’s opinion that text and images can be considered together in determining fair use is an important clarification of a previously “gray area” in the law.
The subpoenas were quashed, the seven represented users remained pseudonymous, and the broader declaratory-judgment case remains pending.
