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The First Amendment protects anonymous speakers from retaliation and other harms by allowing them to separate their identity from the content of their speech to avoid retaliation and other harms. Anonymity is a distinct constitutional right: “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protects anonymity online, as it “facilitates the rich, diverse, and far-ranging exchange of ideas,” Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speaker can use “one of the vehicles for expressing his views that is most likely to result in those views reaching the intended audience.” Highfields, 385 F. Supp. 2d at 981. It is also well-settled that litigants who do not like the content of Internet speech by anonymous speakers will often misuse “discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet.” Dendrite Int’l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).

Thus, although the right to anonymity is not absolute, courts subject discovery requests like the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as the Magistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard when the individual targeted is engaging in free expression. Under Highfields, courts must first determine whether the party seeking the subpoena can demonstrate that its legal claims have merit. Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speech at issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm unmasking may cause.

The Magistrate further confused matters by suggesting that a fair use analysis could be a proxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. This suggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve a similar case purely on fair use grounds, on the theory that Highfields “is not well-suited for a copyright dispute” and “the First Amendment does not protect anonymous speech that infringed copyright.”...

That theory was legally incorrect. While fair use is a free-speech safety valve that helps reconcile the First Amendment and the Copyright Act with respect to restrictions on expression, anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover, DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts to unmask internet users who are engaged in commentary. In such cases, as with the blogger in Signature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. They thus raise precisely the same speech concerns identified in Highfields: the use of the discovery process “to impose a considerable price” on a speaker’s anonymity....

ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysis alone to substitute for a full Highfields review gets the question precisely backwards, given the doctrine’s “constitutional significance as a guarantor to access and use for First Amendment purposes.” Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair use prevents copyright holders from thwarting well-established speech protections by improperly punishing lawful expression, from critical reviews, to protest videos that happen to capture background music, to documentaries incorporating found footage, and so on. But the existence of one form of speech protection (the right to engage in fair use) should not be used as an excuse to give shorter shrift to another (the right to speak anonymously).

Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden of demonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt. No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claims have merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden should not shift to the anonymous speaker, for at least three reasons.

First, constitutional rights, such as the right to anonymity, trump statutory rights such as copyright. Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover, fair use has an additional constitutional dimension because it serves as a First Amendment “safety valve” that helps reconcile the right to speak freely and the right to restrict speech. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create a cruel irony: an anonymous speaker would be less able to take advantage of one First Amendment safeguard—the right to anonymity—solely because their speech relies on another—the right to fair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense that merely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simply as a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016). Second, Bayside itself was required to assess whether the use in question was fair before it sent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explain that assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citing Lenz., 815 F.3d at 1153: “a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)”)

Third, placing the burden on the party seeking to unmask a Doe makes practical sense at this early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside presumably knows—though it has declined to address—the original purpose of the works. And as the copyright holder, it is best positioned to explain how the use at issue might affect a licensing market. While the copyright holder cannot see into the mind of the user, the user’s purpose is easy to surmise here, and the same is likely to be true in any 512(h) case involving expressive uses. With respect to the nature of the work, any party can adequately address that factor. Indeed, both Bayside and Twitter have done so.

While courts often reserve fair use determinations for summary judgment or trial, in appropriate circumstances it is possible to make the determination based on the use itself. See In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022 WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determined during a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federal district court dismissed a copyright claim—without leave to amend—at the pleading stage based on a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v. BMG Music Pub., 512 F.3d 522, 532–33 (9th. Cir. 2008) (affirming motion to dismiss, without leave to amend, fair use allegations where three factors “unequivocally militated” against fair use). See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal. July 17, 2009), aff’d, 422 F. App’x 651 (9th Cir. 2011); Savage v. Council on Am.-Islamic Rels., Inc., 2008 WL 2951281 at *4 (N.D. Cal. July 25, 2008); City of Inglewood v. Teixeira, 2015 WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d 76, 82–83, 88 (S.D.N.Y. 2020), aff’d, 844 F. App’x 436 (2d Cir. 2021); Lombardo v. Dr. Seuss Enters., L.P., 279 F. Supp. 3d 497, 504–05 (S.D.N.Y. 2017), aff’d, 729 F. App’x 131 (2d Cir. 2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin, 64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).

These ruling are possible because many fair uses are obvious. A court does not need to consult a user to determine that the use of an excerpt in a book review, the use of a thumbnail photograph in an academic article commenting on the photographer’s work, or the inclusion of an image in a protest sign are lawful uses. There is no need to seek a declaration from a journalist when they quote a series of social media posts while reporting on real-time events.

First, the tweets appear to be noncommercial, transformative, critical commentary—classic fair uses. The tweets present photographs of a woman, identified as “the new Mrs. Brian Sheth” as part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealth to “invest” in a new, young, wife. As the holder of rights in the photographs, Bayside could have explained the original purpose of the photographs; it has chosen not to do so. In any event, it seems unlikely that Bayside’s original purpose was to illustrate criticism and commentary regarding a billionaire investor. Hence, the user “used the [works] to express ‘something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’” In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user’s purpose is transformative and, Bayside’s speculation notwithstanding, there is nothing to suggest it was commercial.

Of course, there was a party in court able and willing to offer evidence and argument on fair use: Twitter. The Magistrate’s refusal to credit Twitter’s own evidence, Order at 7-8, sends a dangerous message to online speakers: either show up and fully litigate their anonymity—risking their right to remain anonymous in the process—or face summary loss of their anonymity when they do not appear. Order at 7. That outcome inevitably “impose[s] a considerable price” on internet users’ ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2d at 980-81. And “when word gets out that the price tag of effective sardonic speech is this high, that speech will likely disappear.”