DMCA can't be used to sidestep First Amendment, court rules

Anonymous speech protections apply online too, and copyright can't diminish that

It's been a good week for free speech advocates as a judge ruled that copyright law cannot be used to circumvent First Amendment anonymity protections.

The decision from the US District Court for the Northern District of California overturns a previous ruling that compelled Twitter to unmask an anonymous user accused of violating the Digital Millennium Copyright Act (DMCA). 

The Electronic Frontier Foundation (EFF), which filed a joint amicus brief with the ACLU in support of Twitter's position, said the ruling confirms "that copyright holders issuing subpoenas under the DMCA must still meet the Constitution's test before identifying anonymous speakers." 

The case in question involves an anonymous Twitter account that tweeted critical statements about wealthy people including Jeff Bezos, Elon Musk and Nancy Pelosi. In 2020, the account attacked a private equity billionaire, posting photos of an alleged partner and accusing him of having an extramarital affair. 

Days after the tweets were published, an LLC claiming copyright ownership of the photos filed a DMCA request with Twitter, which it honored. The company then went to court to force Twitter to reveal the name of the person behind the account that tweeted the images. 

Vince Chhabria, the judge in the case, said that any discovery requests that unmask an anonymous speaker could have First Amendment implications, and said a two-step inquiry must be conducted to determine whether such a request should be granted. 

"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," Chhabria wrote in the decision, which goes on to explain how Bayside Advisory LLC, the entity filing the claims, failed to show proof of either. 

To the first point, use of the copyrighted images falls under fair use because the tweets "gave the photos a new meaning: an expression of the author's apparent distaste for the lifestyle and moral compass of one-percenters," the ruling said.

In the second instance, the court said the nature of the speech in question means "there is no question that significant First Amendment interests are at stake." Chhabria added that the tweeter's anonymity had to be protected because of potential retaliation by his targets - particularly Brian Sheth, the private equity tycoon the case centers on.  

Twitter is no stranger to legal fights over protecting the anonymity of its users. In 2010 it went to court to fight a Pennsylvania grand jury subpoena request to turn over the identities of two users who had made critical comments about Pennsylvania's Attorney General; that subpoena was later withdrawn.

Twitter also got caught in 2019 "accidentally" giving personal information about its users to advertisers, specifically email addresses and phone numbers used to register accounts. Your online privacy mileage may circumstantially vary.

While this is a specific and localized example, it does set the stage for future potential rulings across other platforms, from social media to websites. ®

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