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

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 …

  1. Doctor Syntax Silver badge

    I'm sure Musk is pleased that the ID of someone who tweeted about him is protected by the 1st Amendment.

    1. Mark 85 Silver badge

      I thought it was a foregone conclusion that Musk will change a lot things if and when (maybe) he buys Twitter.

  2. Anonymous Coward
    Anonymous Coward

    "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."

    Is it common for judges to use hipster slang like "one-percenters" in their rulings? Isn't the use of that term showing a bit of bias?

    1. Richard 12 Silver badge

      Or that was the term used by the tweeter (twit? twonk?) in their postings.

    2. doublelayer Silver badge

      My guess, having not read the opinion, is that they were quoting somebody. That could be the original tweet, someone's description of it, or Twitter's lawyers. I know when I've written long things where I'm quoting someone in that way, writing so-called every time gets boring and I sometimes forget to do it. I might be wrong, though, and it's the judge's own description of the goals they ascribe to the person involved. Their point remains the same however they choose to express it.

      1. Anonymous Coward
        Anonymous Coward

        I found it on page 9 of the ruling, down near the bottom of the page. It doesn't appear to be any type of quote, and there weren't any other references related to it leading up to that point. If the Judge was merely using lingo "in the swing of things", it would seem more proper to put quotes around an inflammatory word like that to show that it wasn't the Judge's own opinion. But there aren't any quotes, and in the context of the document, it surely seems like an off-hand comment by the Judge.

        Having read the earlier 9 pages, I must say the writing style in that judgement is incredibly relaxed for an official Federal District Court ruling.

    3. Michael Wojcik Silver badge

      "hipster slang"? There's a big disparity between the demographics of the Occupy movement (which coined the "one-percenter" label) and the hipster subculture. The former was dominated by progressives, a significant portion of them older (about 20% over 45, according to the survey by Cordero-Guzman & Schultz), and mostly lower-income (about 85% under $75K/yr). Hipsterism is dominated by upper-middle-class and affluent teens and young adults, and is culturally retrogressive, with a postmodern iconography scavenged indiscriminately from the real and imagined past. There's little ground for calling "one-percenter" a "hipster" term.

      There's no reason for a judge to avoid using vernacular terms to describe a defendant's state of mind when they express the appropriate idea; in fact, when they're terms that the defendant might use, they clarify the opinion by providing relevant connotations. Using them would be very weak evidence of bias indeed, and frankly I'm not sure how you would draw that conclusion.

      Legal writing is often so stogy that it obscures its own meaning. The movement for more use of plain language in legal writing is of benefit to us all. It certainly shouldn't be obstructed by unwarranted shibboleths like this.

      1. Anonymous Coward
        Anonymous Coward

        " Using them would be very weak evidence of bias indeed, and frankly I'm not sure how you would draw that conclusion."

        Possibly because we have dozens of other words/phrases that could have been used there that are not politically or socially charged and that are commonly used in official government documents like this. Yet the judge ignored those old standbys and chose one that's only come into hipster slang in the past 10 years or so.

        As to "hipster", I stand by my earlier use - the judge used the phrase either as a dog-whistle, or to seem hip. I went with hip as that has less dark overtones for our justice system than a dog-whistling federal judge.

        Hipster - a person who follows the latest trends and fashions, especially those regarded as being outside the cultural mainstream.

      2. Stephen Wilkinson

        It's not Hipster slang and they didn't coin it.

        It was coined in 1947 with regards some outlaw motorcycle clubs that can be distinguished by a "1%" patch worn on the colors. This is said to refer to a comment by the American Motorcyclist Association (AMA) that 99% of motorcyclists were law-abiding citizens, implying the last one percent were outlaws.

  3. gnasher729 Silver badge

    The ruling makes absolute sense.

    When a website gets a DMCA notice, then it can just take the post down, and that’s it. They might not even know who posted without detective work, so that should be fine.

    Or they could tell the poster, which is a nice thing to do, so at least they know why their post is gone. The poster could send a counter notice which the site can ignore, at this point there is still absolutely no reason why the website should give any info out.

    Only if the poster sends a counter notice that the site uses to restore the post, that’s the poster effectively telling the copyright owner “you stink, I dare you to sue me”. That should only happen if the poster gives his name and contact information and that should be passed on, because at this point there should be a court case. (Maybe the website should have to pass on this info if the copyright holder actually goes to court. )

    1. This post has been deleted by its author

  4. eldakka Silver badge

    Days after the tweets were published, an LLC claiming copyright ownership of the photos filed a DMCA request with Twitter, which it honored

    The LLC in question, Bayside, is an extermely dodgy entity in its own right. From the judge's ruling (PDF):

    As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter. It appears that Bayside had never registered any copyrights until the registration of these six photographs, which happened after the tweets were posted. And there appears to be no information publicly available about Bayside’s principals, staff, physical location, formation, or purposes.
    During the hearing, when the Bayside attorney claimed that Bayside was a company who's business was licensing copyrights, the judge had the attorney bring up Bayside's website on the spot, and pointed out that there were no contact details on that website - no email, no phone, no postal (or office) address, no names of people to contact - there was no information provided to allow a potential licensee to contact the company to procure such a license.

    1. Anonymous Coward
      Anonymous Coward

      I am pretty sure that I can have in a few minutes a document showing that I am the rightfully owner of the copyright on any picture, if this is enough to have Twitter put down a post ...

      1. gnasher729 Silver badge

        No, you have enough to _pretend_ to be the rightful owner. If you make a mistake, and you send a DMCA notice to take down Abby's Greatest Hits of an unknown singer when you own Abba's Greatest Hits, that's a mistake with no consequences. But if you pretend that you have the copyright or represent the copyright holder of Abby's Greatest Hits when you don't, that's perjury. Jail time. Remember that you can't file an anonymous DMCA request.

      2. eldakka Silver badge

        > I am pretty sure that I can have in a few minutes a document showing that I am the rightfully owner of the

        There isn't any question as to whether Bayside has the copyright. It has a valid registration with the copyright office.

        However, the sequence of events shows that this is entirely a SLAPP suit with the intention of unmasking the owner of the account that posted it rather than an attempt to protect valid copyright interests. Therefore the judge has thrown it out on, basically, first amendment grounds being stonger than the copyright claims.

        1. Falmari Silver badge

          @eldakka “There isn't any question as to whether Bayside has the copyright. It has a valid registration with the copyright office.”

          Well, the judge certainly questioned that, from the linked decision (PDF) in article. “Is Bayside owned or controlled by someone associated with Brian Sheth? Was Bayside formed in response to these tweets? How did Bayside come to acquire these copyrights, and from whom?"

          Bayside was formed the same month as the tweets, registered copyright of the photos 4 days after the takedown request claiming ownership. Bayside also claim Brian Sheth has never had copyright of the images and have not provided information on who the photographer was.

          So, you can see why the judge asked this How did Bayside come to acquire these copyrights, and from whom? I would say there is a question as to whether Bayside has the copyright.

          1. eldakka Silver badge

            > So, you can see why the judge asked this “How did Bayside come to acquire these copyrights, and from whom?” I would say there is a question as to whether Bayside has the copyright.

            No, as your own post notes, that question is asked to help answer the question of:

            > “Is Bayside owned or controlled by someone associated with Brian Sheth? Was Bayside formed in response to these tweets? ..."

            The judge isn't questioning whether Bayside has a valid copyright assignment, how Bayside got that assignment is relevant to the predicate question of whether this is a SLAPP suit. It is what the motive is for the suit. The judge asked what relationship Seth has to the company. The lawyer for Bayside says "none". So the judge is asking, if there is no relationship to Seth, how did Bayside get the copyrights for something related to Seth? Surely that shows some sort of relationship - i.e. the lawyer is at least being misleading if not outright lying about there being no relationship between Bayside and Seth. Asking about the copyright assignment to Bayside is a way to dig into what relationship Seth has to this matter, and if that relationship can be demonstrated, it is most definitely a SLAPP suit, with potential contempt of court charges against the Bayside attorney for misrepresenting the relationship in court, against Seth for not exposing an interest, and against Bayside for abuse of process.

            1. Falmari Silver badge

              @eldakka I agree with everything you say +1. “The judge isn't questioning whether Bayside has a valid copyright assignment”. But that was not my reason to say there is a question as to whether Bayside has the copyright.

              My reason was the fact that the judge was able to ask that question because Bayside were unable (more likely unwilling) to say who they acquired the copyright from or even the name of the photographer. They would have had to acquire the copyright from someone as Bayside were formed after the photos were taken and supposedly published.

              Sure, they have registered the photos but does not mean they had acquired the copyright. Having visited the US Copyright Office website and gone through the various pages to register copyright no proof of ownership is required. Just declare that you are the author copyright owner etc. The name of the copyright holder author or company, I assume they used their company name otherwise the judge would know the name of the photographer.

              As Bayside can’t show they have acquired the copyright, there is a question as to whether Bayside has the copyright.

          2. John Brown (no body) Silver badge

            "So, you can see why the judge asked this “How did Bayside come to acquire these copyrights, and from whom?” I would say there is a question as to whether Bayside has the copyright."

            Absolutely that. Based on the sudden appearance of this company, the onus is very much on them to prove they own the copyright and from what date. You can't just rock up to court claiming you own something without the evidence that you actually own it.

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