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In re DMCA Sec. 512(h) Subpoena to Twitter

A company sent a subpoena to Twitter seeking to obtain the identity of the owner of a Twitter account who had posted photos of women in sarcastic tweets suggesting that a private equity capitalist was involved with the woman. The company asserted ownership in the copyright of the photos and demanded that Twitter take down the photos, which it did. The company then subpoenaed Twitter for information about the account owner, claiming that it needed to identify the person to pursue copyright infringement claims. Twitter moved to quash the subpoena, invoking the user’s First Amendment right to speak anonymously. Public Citizen filed an amicus brief agreeing with Twitter that it has standing to advocate its user’s First Amendment right to speak anonymously and that, in deciding the motion to quash, the court should balance the right to speak anonymously against the right to bring facially tenable claims. The brief takes a different view from Twitter, however, as to the way in which the balancing analysis should be applied. Agreeing with our analysis of the balancing stage, and also holding that the anonymous poster’s use of the photos qualified as fair use, the trial court quashed the subpoena.