by Paul Alan Levy
Judge Vincent Chabbria ruled that an anonymous Twitter user using the pseudonym “Mr. Money Bags” could not be identified pursuant to a DMCA subpoena, both because her display of copyrighted photographs to taunt a venture capitalist for allegedly spending money on the company of nubile young women was fair use, and because, in any event, applying the well-known Dendrite standard,the Twitter user’s First Amendment right to speak anonymously outweighs the mysterious copyright owner’s possible interest in pursuing judicial remedies for the alleged infringement. His opinion joins several other recent decisions refusing to recognize a broad "copyright exception" to the Dendrite standard.
Judge Chhabria Agrees That Standard Dendrite Analysis Applies
The case had aroused substantial interest, and amicus involvement from Public Citizen as well as from EFF and ACLU of Northern California, because Bayside Advisory, the owner of the copyright in the photographs, argued, with avid amicus support from copyright owners’ trade associations, that the First Amendment right to speak anonymously could not be invoked to oppose a DMCA subpoena, or, at the very most, that a highly permissive standard (the “Sony Music” standard) for identifying alleged infringers in cases involving the misuse of peer-to-peer software to obtain and disseminate copyrighted musical recordings and movies was the right one for assessing DMCA subpoena cases.
Judge Chhabria cursorily rejected these contentions, holding simply that Dendrite is the governing standard without even mentioning Sony Music as an alternate approach. He elaborated only that, to the extent that Bayside was arguing that the text of the DMCA precluded any invocation of the First Amendment as limiting enforcement of a subpoena sought in furtherance of an alleged copyright claim, that raised serious First Amendment concerns that militated against such a construction of the statute. He also squarely rejected Bayside’s argument that a platform hosting allegedly infringing content lacks either standing or statutory power to assert the First Amendment or fair use rights of its users.
Applying Dendrite, the Subpoena is Quashed
Turning to the application of the Dendrite analysis, Judge Chhabria focused on Mr. Money Bags’ invocation of fair use, and held that, because a thorough analysis of the four fair use factors led to the conclusion that Bayside’s putative copyright claim would be defeated by fair use, Bayside had not established a prima facie case of copyright infringement. In that regard, the court took an approach to the uncertainties of who Mr. Money Bags is and in whose interests Bayside was pursuing the subpoena that was diametrically opposed to the analysis of the Magistrate Judge Ryu, who had ruled that the subpoena should enforced, Judge Ryu had concluded that, because Mr. Money Bags had not appeared to defend her anonymity, she could not assess the purpose of his use of the photos; she paid no attention to the mysterious nature of Bayside’s interest. Judge Chhabria, however, concluded that the purpose of Mr. Money Bags’ use of the photos was obvious — to poke fun at a venture capitalist named Brian Sheth — but that Bayside’s refusal to identify its principals or to provide any evidence of how it was using its photos, what their potential market was, and how the tweeting of the photos could injure that market, constrained him to find that the fourth fair use factor favored fair use.
The same uncertainties led Judge Chhabria to take a diametrically opposed approach to the Dendrite balancing stage than Magistrate Judge Ryu had done. Judge Ryu decided that she could not engage in any balancing analysis because Mr. Money Bags had rejected her invitation to appear to defend her anonymity. Judge Chhabria, however, although indicating that the non-appearance of Mr. Money Bags might mean that some useful facts did not make it into the record, was far more concerned about the shadowy nature of Bayside Advisory and about its failure to present solid evidence about who is behind its subpoena proceeding. Indeed, despite circumstantial evidence suggesting that Bayside might be no more than a sock puppet created to enable some anonymous person (perhaps Sheth himself) to pursue Mr. Money Bags’ identity, Bayside coyly refused to provide details in response to some pointed questions from the Court about who is really behind Bayside and why it is willing to spend tens of thousands of dollars seeking to identify the alleged infringer even though its damages claim is likely below a thousand dollars (it cannot recover statutory damages or attorney fees because its registration was not timely). Judge Chhabria’s decision simply concludes that, absent evidence from Bayside about the nature of its real interests, he had to draw an inference that Bayside could not provide evidence supporting a substantial need to obtain Doe’s identifying information, and hence concluded that Mr. Money Bags interest in maintaining her anonymity outweighed Bayside’s interest in obtaining enforcement.
At the same time that Judge Chhabria did not follow Judge Ryu in holding that a Doe’s interest in remaining anonymous could not be addressed unless the Doe is represented in the motion to quash, he did not accept the argument advanced by Twitter’s supporting amici, and apparently by Twitter itself, that a Doe’s interest in remaining anonymous always outweighs a would-be plaintiff’s interest in proceeding unless the plaintiff can carry the burden of succeeding at the balancing stage. One reason we filed an amicus brief in this case was our concern that this burden argument puts an unsustainable thumb on the scales and makes the Dendrite test less attractive in the long run, because, as amicus argued the case, it would seem that a plaintiff with a solid case might, nevertheless never succeed in identifying an anonymous defendant. (We were also concerned to explain the policy reasons why courts confine the Sony Music standard to online downloading cases).
Happily, Twitter’s reply brief indicated that it agreed with Public Citizen’s analysis on this issue. Judge Chhabria, for his part, paid our brief the ultimate explicit compliment by Dsaying at the outset of the hearing that our brief “may be the most helpful brief I've ever read." (The ultimate compliment, albeit only implicit, is when a court lifts what Karl Llewellyn used to call the “opinion kernel” from your brief and plugs it into its ruling, as the New Jersey appellate panel did in Dendrite itself).
What Happens Next
Judge Chhabria’s ruling hints at the broader concerns that he articulated at the hearing, where, as a practical matter, Judge Chhabria was suggesting that he might order an evidentiary hearing and might call for the use of discovery techniques to identify Bayside’s own anonymous backers. Bayside resisted that approach, and arguing for Public Citizen at the hearing, I sided with Bayside on this point. As I explained, Bayside had some discrete legal issues – its argument that the statute commands compliance regardless of any fair use concerns and any threat to the First Amendment right to speak anonymously, and that Twitter as a host had no right (and no standing) to posit its users’ First Amendment rights as a bar to compliance—that it could take to the Ninth Circuit. I suggested that Bayside ought to be allowed to rest on those arguments instead of litigating the factual issues related to fair use and the balancing stage.
Bayside eagerly grasped this lifeline to explain its unwillingness to participate in further litigation, proclaiming that it did intend to seek appellate review because it felt it had important rights that it could establish at the appellate level.
But was this response to a possible attack on Bayside’s bona fides itself stated in good faith? We shall see whether Bayside follows through on its expressed intent to take this case to the Ninth Circuit. It seems to me that its counsel’s presentation at oral argument has rather boxed it into pursuing an unwise appeal. To be sure, as I indicated at the hearing, Bayside has some pristine legal issues that could, in theory, be a basis for solid appeal despite its refusal to participate in any further exploration of the facts relating on fair use and the Dendrite balancing stage. But at the same time Bayside will come across on appeal as an unattractive appellant – a litigant with a shadowy background, whose refusal to say who is behind its efforts provides a basis for an inference that the evidence would not have supported its position on those issues. Why, after all, should an essentially anonymous party be allow to employ court process to compel identification of an anonymous Internet user who had plainly—whether rightly or wrongly—used some photos to express a socio-political opinion about a public figure. And why would this record impel appellate judges to enforce a merely theoretical copyright interest against a very real interest in speaking anonymously?
That is one reason why I welcomed Bayside’s promise to pursue its contentions in the Ninth Circuit. But will Bayside live up to its stated intentions? Or was its counsel's professed intent to appeal just one more dodge during a touch oral argument?