“Do Copyright Holders Get a Free Pass to Identify Alleged Infringers?”

In the initial instance, the Magistrate Judge assigned the case ordered Twitter to notify the anonymous user to allow her to retain counsel or to express her objections to subpoena. When the anonymous user failed to take advantage of this opportunity, the Magistrate Judge ordered Twitter to provide the identifying information, reasoning that neither the fair use defense nor the “balancing” stage of the subpoena analysis could be applied properly unless the anonymous accused offender entered the case to provide evidence bearing on her purpose in using the photos or the harms that could befall her if she is identified.

Twitter has sought de novo review, and its position has been supported by EFF and the ACLU, which filed an amicus brief urging reversal of the magistrate judge’s ruling and a grant of the motion to quash. Twitter and its advocates argue that not only did the magistrate judge miss the fair use analysis but that he should also have quailed the subpoena on the balancing phase alone. EFF/ACLU argue that copyright owners are responsible for proving their rights to enforcement outweigh anonymity. Or, it’s “self evident that identification would.” [result in]”Public exposure of plaintiffs’ identities and the financial, and other costs of representing themselves in a multi-count case.” (Twitter’s argument)

Bayside is defending the decision it secured, also supported by amicus briefs from the Copyright Alliance and from a coalition of photographers’ organizations: Their arguments include the contentions that an Internet platform should never be allowed to invoke its users’ possible fair use defenses as a basis for opposing enforcement of a DMCA subpoena, and that, because the defense of fair use supplants possible First Amendment objections to copyright infringement claims, no consideration should be given to the First Amendment right to speak anonymously. The court should use the standard of fair use, they argue. Sony Musicit is up to the court of appeal whether or not the infringer should face justice.

Public Citizen filed our own amicus brief taking an intermediate position between the two extremes asserted by Bayside and its amici on the one hand, and Twitter and our friends at EFF and the ACLU on the other. No position has been taken on the question of whether or not, on the basis of a thorough analysis, the subpoena should have been enforced. (Many thanks to Phil Malone at Stanford’s Juelsgaard Clinic for collaborating on the amicus brief at a difficult time)….