Anonymous speech is an important protection for those concerned about political or economic retribution, harassment, or even threats to their lives. The shield that protects those speakers’ anonymity in U.S. court is the First Amendment, and applying the appropriate constitutional test during litigation allows a court to appropriately balance the necessity of unmasking a litigant with the harm of exposing them.

Unfortunately, courts do not always apply the correct tests to protect anonymous speakers, particularly when they use other’s copyrighted material to engage in commentary and criticism. That's why EFF and the ACLU Foundation of Northern California filed an amicus brief today in the United States District Court for the Northern District of California arguing that a magistrate’s decision sidestepped the appropriate constitutional test for maintaining anonymity. The flawed ruling results in speakers who use copyrighted material receiving less anonymity protections than those who don’t. 

The case is an effort to unmask an anonymous Twitter user (@CallMeMoneyBags) who posted photos and content that implied a private equity billionaire was romantically involved with the  woman who appeared in the photographs. Bayside Advisory LLC holds the copyright on those images, and used the DMCA to demand that Twitter take down the photos, which it did. That should have been the end of it.

Instead, Bayside Advisory sent a subpoena to Twitter to unmask its anonymous user. Twitter refused and asked a federal magistrate judge to quash the subpoena. The magistrate incorrectly ruled that Twitter must disclose the identity of the user because the user failed to show up in court to argue that they were engaged in fair use when they tweeted Bayside’s photos. Twitter has asked a federal district court judge to reverse the magistrate’s decision.

In the Ninth Circuit, There Is No Copyright Exception to Robust First Amendment Scrutiny

There were many problems with the magistrate’s ruling. But perhaps the biggest was its decision to let the copyright infringement claims by Bayside drive its analysis and decision. As our brief argues, anonymity standards depend on the nature of the speech, not the nature of the claims. And by focusing only on copyright law, the court did not apply more protective tests that recognize that anonymous speech is a distinct right designed to protect a speaker beyond the content of any particular statement that is alleged to infringe copyright:

"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 and other harms.” The brief goes on: “[A]lthough the right to anonymity is not absolute, courts subject discovery requests like the subpoena here to robust First Amendment scrutiny . . . when the individual targeted is engaging in free expression."

One consequence of the magistrate’s ruling is that some speakers are more vulnerable to unmasking than others, based solely on the nature of the claims asserted against them. But the same First Amendment protections apply to copyright disputes when a user is engaged in free expression. And narrowing the inquiry only to whether copyright infringement occurred incorrectly allows the nature of the claim to drive the analysis, rather than the nature of the speech at issue.

Bayside Advisory Would Fail the Correct Test

Under the correct test, courts must first determine whether the party seeking the speaker’s identity has meritorious claims. If so, the court must then look beyond the content of the speech at issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm unmasking may create. In sum, Bayside Advisory must show that the Twitter user did not engage in fair use when it posted the copyrighted images, and then show that its need for unmasking @CallMeMoneyBags’ identity outweighs the harm of doing so.

Bayside would fail the first test, EFF and ACLU’s brief argues. The tweets in question are classic fair uses: noncommercial, transformative, critical commentary. 

And even if Bayside had a valid infringement claim, it would not pass the second part of the test—showing that unmasking is truly necessary to advance its interests, that those interests outweigh the harm that would result, and that no alternative path exists. Unmasking in this case would accomplish little other than allowing retaliation and chilling further speech. And Bayside has already forced Twitter to remove the photos from the tweets, raising questions about why identifying the user is necessary at all.

Magistrate’s Ruling Also Harms Ability of Services to Have Their Users’ Backs

Another concerning aspect of the ruling is its implications for an online service’s ability to stand up for their users in court. The magistrate ruled that because the Twitter user did not show up in court and put forward evidence that their use of Bayside’s photos was transformative, the court could not decide whether fair use applied. The court then failed to credit evidence that Twitter put forward to establish fair use.

The decision was wrong on a number of levels. As our brief argues, it is well settled that online services that distribute others’ speech are entitled to defend those speakers’ First Amendment rights; not allowing them to do so sends a dangerous message to online speakers: either show up in court to defend your anonymity, risking your right to remain anonymous in the process, or face a loss of your anonymity by not appearing.

The DMCA Should Not Be Misused to Chill Lawful Speech

Abuse of copyright law is an all-too common method used to silence lawful speech. This ruling makes misuse of copyright law even worse, by allowing the DMCA to serve as a shortcut around traditional anonymity protections. We’ve witnessed firsthand the chilling effects of copyright being misused to target anonymous speakers.

In a similar case in 2019 involving Reddit, EFF represented a user that the Watchtower Bible and Tract Society sought to unmask, claiming that they posted Watchtower’s copyrighted material. As expected, the court quashed the subpoena and saw that the effort was little more than an attempt to retaliate against a speaker who was critical of Watchtower.

And as we’ve documented for decades, copyright holders frequently misuse the DMCA to take down legitimate speech that makes use of other’s material. As we argue in the brief, courts must apply robust First Amendment safeguards to prevent DMCA abuse that either seeks to suppress speech or to identify anonymous speakers. And in this case, that required the magistrate to apply the correct First Amendment test and quash Bayside’s subpoena. 

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