Category: Culture

A Sound First Amendment Decision with an Odd Fair Use Kicker

A couple of weeks ago, in my post about ghost guns and trademark infringement, I argued that the EFF is wrong to defend the anonymity of the parties who flaunted their alleged infringements on Twitter. In that case, the individuals had manufactured DIY guns (ghost guns) in collaboration with the materials and tools provided by Defcad, Inc.; they had affixed their weapons with both word and design marks owned by the gun-control advocacy group Everytown For Gun Safety; and they had posted images of their products on social media along with deprecating comments about Everytown.

Because there appears to be a triable issue of trademark infringement in which the Doe defendants are plausibly implicated, I disagree with EFF’s view that the anonymous individuals used the marks for the sole purpose of protected speech. Consequently, pursuant to Everytown’s claim of infringement, its interest in discovering the identities of those individuals is reasonable in that light.

I further argued in that post that considering anonymity as coextensive to the speech right should be weighed on a case-by-case basis, and in that example, it is absurd to allege that anonymity is necessary for the general expression of anti-gun-control views in this country. There, the plaintiff has reason to argue that anonymity is merely a strategy by Doe defendants to avoid liability rather than a means of protecting their First Amendment rights.

A Poor Use of Copyright Law

By contrast, a colleague brought a new matter to my attention recently in which a wealthy claimant of questionable nature sought to use copyright law and the provisions of DMCA Section 512(h) to expose an anonymous critic—and apparently for no purpose other than to expose and intimidate the critic. No doubt, somebody will cite this story as an example of a powerful figure “weaponizing copyright” to stifle the speech of a defenseless individual, and that’s one reason I’m writing about it. Because let’s be clear:  copyright advocates don’t appreciate copyright law being used for purposes other than to protect creative expression and promote the progress of same.

This case involves an anonymous blogger who devotes his/her energy to mocking or criticizing the uber wealthy and politically powerful, including Jeff Bezos, Elon Musk, Nancy Pelosi, et al. I have neither an opinion about, nor interest in, the content of the blogs or tweets, as there is no question that anyone, whether anonymous or not, is free to criticize anyone else, especially public figures. But apparently, this party got the attention of billionaire Brian Sheth …

In a series of six tweets accompanied by photos, an anonymous Twitter user who goes by @CallMeMoneyBags criticized Brian Sheth, a private-equity billionaire. Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account.

That summary is at the top of the California District Court opinion denying Bayside Advisory’s subpoena to compel Twitter to unmask MoneyBags. Bayside had made the request under DMCA Section 512(h), which allows a copyright owner to compel an OSP to disclose the identity of an alleged infringer without first filing a claim against a Doe defendant and later pursuing the party’s identity in discovery.

The rationale of the statute, when all parties are acting in good faith, is that a copyright owner with a sincere intent to protect his rights, should want to identify an alleged infringer before deciding how or whether to remedy the matter. This knowledge can benefit both rightsholder and alleged infringer. But the presumption should be the contemplation of a meritorious claim of copyright infringement and not merely an intent to expose the anonymous speaker for other purposes. That should be the only reasonable basis for enforcing the subpoena to unmask a Doe defendant under Section 512.

Here, the available facts imply a narrative in which Bayside, a party with potentially limitless resources, is misusing copyright law for the sole purpose of exposing and censoring a critic. The entity LLC appears to have been formed exclusively for the purpose of hastily acquiring the rights to the six photos at issue and then registering the works with the Copyright Office after the alleged infringement of the images by MoneyBags.[1]

Although 512(h) allows a subpoena without first filing a claim of infringement, the court clarifies that the statute expressly states that the provision is subject to Federal Rule 45 and that, “A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment.”

Views will vary as to whether the First Amendment encompasses a right to speak anonymously. The EFF and similar organizations seem to think it always applies; others may say it never applies. As stated in that ghost gun post, I believe it depends on whether anonymity is reasonably necessary to protect the speech at issue and whether the speech itself may not be protected, which it is not if it amounts to copyright infringement.

In this instance, the resources and legal maneuvers the claimant appears willing and able to exploit merely to silence personal criticism makes a strong case for a nexus between the speaker and his/her anonymity. This is further emphasized by the court’s reasonable inference that Sheth is hiding his own identity behind the LLC, the website for which just happens to be a one-pager with no clear purpose.

If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious. As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter.  

Suffice to say, the complaint reeks of shadiness and a deplorable use of one fragment of the Copyright Act for a purpose that appears to have nothing to do with copyright. Based on the limited facts available, I believe the court acted correctly in finding that the First Amendment considerations outweigh Bayside’s dubious intent in exposing MoneyBags’s identity.

But About That Fair Use Analysis!

Bayside alleged that “to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the court states. I’ll be honest and say that I have no idea what Bayside is driving at here, and perhaps it is naïve about the circuit in which it attempted this argument.

Nowhere does the fair use exception “wholly account” for the First Amendment interests of a defendant, but here, Plaintiff invites a court in the Ninth Circuit to embark on a fair use analysis, which it should have declined in this instance. The court had already established a rationale for denying the subpoena and did not need to conduct a fair use consideration as though this were a case at the summary judgment phase with sufficient evidence presented. Nevertheless …

In response to Bayside, the court noted that it is bound by circuit precedent in Lenz, it calls fair use “colloquially an affirmative defense,” and then it states, “To make a prima facie case of copyright infringement for the purposes of obtaining a subpoena, then, a party must make a prima facie case that the infringing use did not constitute fair use.” And then, to add insult to speculation the court committed that chronic error in fair use factor one, writing …

… the use is transformative. Considered on their own, the copyrighted photos may have aesthetic value. But MoneyBags was not using the photos for their artistry. Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters.

The court’s reasoning here is incorrect as a matter of law, especially without sufficient facts presented to consider the matter more fully. But based on that paragraph alone, the court errs when it opines that commentary about the subject(s) in a photograph is inherently “transformative” and, therefore, favors a finding of fair use. Such a generalized rule would excuse nearly any media company from licensing photographs simply because editors add captions and display images along with articles composed of text.

The court had not only found a basis to deny the subpoena, but it further stated that based on the record of plaintiff’s conduct that, “… even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.” That being the key finding, it makes even less sense that the court engaged in a half-blind fair use analysis and added yet another poor example of “transformativeness” to that circuit-splitting tapestry of opinions.

Independent copyright owners, who truly make a living from creative work, have a hard time protecting their rights as it is. Misuse of copyright law by wealthy and powerful individuals is both offensive and unhelpful in that it gives the anti-copyright ideologues and policy wonks grist for their mill. They cite these stories under general headlines like “copyright is broken,” and then the internet does its thing. At the same time, it is also unhelpful to the vast majority of creators when courts are tempted into fair use discussions that are speculative to the point of whimsy.

[1] The lack of timely registration is a barrier to litigation for most copyright owners because it precludes statutory damages and attorney’s fees, but if money is no object, and the intent is to censor rather than protect copyright rights, then timely registration is moot.

 

A Good Right to Repair Bill Would Not Break Things

Rep. Mondaire Jones (NY), along with co-sponsor Rep. Victoria Spartz (IN) introduced a bill in February called the Freedom to Repair Act. Seeking to remedy a specific, unintended consequence of one part of the Copyright Act, the bill overreaches so dramatically that it would effectively legalize piracy of creative works. If Congress wants to address unfair practices among certain manufacturers of machines and vehicles, the solution cannot be to remove copyright protections for authors, filmmakers, musicians, and other creators.

We all know that many domestic and commercial products are at least partly controlled by software. It has been years since anyone has taken a car to a mechanic without seeing it hooked up to a computer to obtain diagnostic data about the vehicle’s condition. And because software is protectable by copyright law, consumers of various products complain that manufacturers use enforcement of their copyright rights to maintain monopoly protection over replacement parts and repair processes necessary for maintenance.

While it is true that using copyright law to extend unreasonable, post-sale control over machines and vehicles can strain copyright’s core purpose to foster creative expression, the Freedom to Repair Act makes no distinction between the creative industry and the world of manufactured goods. Instead, the one-page bill simply upends DMCA Section 1201 of the Copyright Act—the section that prohibits circumventing digital rights management (DRM) tools (a.k.a. technical protection measures) used to prevent unlawful copying or distribution of protected material.[1]

The difficulty of course is that creative works are all converted into code so we can have products like eBooks and enjoy filmed entertainment or music via downloads or streaming services. The same Section 1201 that may be wrongly exploited by certain manufacturers is still predominantly doing the work of ensuring that creative material can be legally commercialized so that the professionals who produce these works are paid for their labor, skills, and expertise.

The Freedom to Repair Act is so broadly written that it would repeal Section 1201 without regard for the diverse range of economic activity it continues to foster. Reps. Jones and Spartz should be reminded that the creative industries contribute about $1.5 trillion to U.S. GDP, and Jones’s state of New York is one of the most vibrant creative markets in the country. If the congressman hopes to craft an effective right to repair bill, his office needs to hear from the many creative professionals in his state alone whose livelihoods increasingly depend on the provisions in Section 1201.

With the vast majority of us consuming most of our media through on-demand digital services, Section 1201 is more relevant than it was in 1998, when it was first adopted to encode material distributed in formats like DVDs. Meanwhile, the market continues to tempt opportunistic ventures hoping to develop new methods and new rationales for circumventing copyright law and exploiting creative works without license. The last thing the creative industries need is for Congress to clear a new path to legalized piracy.

I join those who endorse the spirit of a right to repair initiative, but the Freedom to Repair Act, as written, would allow the exception to overwhelm the rule and cause considerable and needless harm to millions of professionals who work in creative fields. Consequently, the bill is a disservice to the issue it proposes to address because it is justifiably going nowhere on Capitol Hill. If Rep. Jones et al. are serious about a federal right to repair law, they must meet with representatives of the creative industries and work to craft nuanced legislation that targets the issue at hand and does not carelessly fix things that ain’t broken.

[1] It should also be noted that complaints about a right to “jailbreak” various products often blame copyright law where regulations like environmental safety may be the underlying basis for the prohibition.

Photo source by: JGade_DK

Privacy in an Age Without Any

I join millions of Americans—the vast majority in fact—in feeling both dismay and anxiety at the near certainty that Roe v. Wade will be overturned. Abortion is not a subject for the editorial scope of this blog, but because the issue historically intersects the right of privacy—and because enforcement of the most draconian laws now on the books in several states implies substantial invasions of privacy—it is worth asking what happens next in a society that has largely sacrificed privacy to its technological toys?

In 1992, Ruth Bader Ginsburg, as part of the Madison Lecture series, discussed the assailable weaknesses in Roe, including her view that it was decided on the wrong question—the implied right of privacy rather than an affirmative right of non-discrimination. She further argued that Roe was so overbroad an opinion that it stymied judicial and political progress at the time, trending toward mitigating or ending sex-based discrimination. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” Ginsburg wrote before contrasting Roe with contemporaneous decisions that she believed supported a more solid, if narrower, holding.

Although I personally agree with Justice Ginsburg that privacy was not the ideal foundation on which to base a woman’s right to seek an abortion, Roe’s unstable purchase on the privacy right comes in a moment when, for all practical purposes, privacy does not exist.* Regardless of the constitutional questions raised by Ginsburg et al., both the tenor and the letter of the state laws being written, or discussed, reek of religious fundamentalism and medieval encroachments into the most personal matters of people’s lives. And we must acknowledge the implications of enforcing those laws in the age of the cellphone and the social media profile.

What started with reconnecting with old friends via Facebook bloomed into so much personal data—even information shared unintentionally—that algorithms can not only predict outcomes, they can be used to effect outcomes. There is no need to reiterate the many world events thus far shaped by the manipulation of Facebook data alone. But suffice to say that if some well-financed interest wants to know the intimate details of a complete stranger’s sex life—or the same about a whole community (e.g., all the women at a particular college)—we have already shared more than enough information for an algorithm to produce fairly accurate results.

I don’t think it is farfetched to say that we are past the point when a state actor or political action group can theoretically purchase data which can then be used to predict when a woman intends to end a pregnancy, let alone know whether she already has. Add this to the kind of vigilantism being codified into state laws, and the harm beyond the abortion right itself flows into every vein of our civil liberties.

If Texas or Missouri, for instance, seeks to proscribe access to pharmaceutical abortion and/or travel out of state for a procedure, does this imply that women will need to abandon their right to maintain social media profiles or that they’ll need to use burner phones like drug dealers just so they can make their own medical decisions? The interpretive capacity of AI has already proven to be highly effective and dangerous. No woman needs to announce over Twitter that she’s on her way to the clinic. On the contrary, Google’s promise to “know you better than you know yourself” is only partly a PR statement because the boast correctly describes how powerful data interpretation at scale can be.

Outlandish fears? I doubt it. Not based on the evidence so far. Increased harassment of women—including crossover from cyberspace to real space—is already a sad reality of life plus social media. And there is no reason to believe that the intersection of misogyny and anti-abortion zeal will not be amplified and extended through the use of these technologies.

Whether Ginsburg et al. are correct that Roe galvanized the anti-abortion movement into a force that otherwise may not have materialized, it cannot be denied that the fervor of that opposition today is willing to deploy any tools available in the pursuit of its crusade. In a time when we should be criminalizing abuse of these technologies to spy on, harass, or surveil our neighbors, the state laws upheld by overturning Roe all point us in the opposite direction.

* I do not mean to imply that this Court would uphold abortion rights under any claim, but merely illustrate a distinction from the privacy foundation.

Image by: kentoh