Twitter/X Might Have a New DMCA Subpoena Controversy On Its Hands

June 2022 marked the end of a legal battle that despite modest roots, went on to become one of the most interesting copyright cases in recent years.

 

After paying just $47, a shadowy business entity hoped to obtain a DMCA subpoena that would compel Twitter to hand over the personal details of an alleged copyright infringer. Pseudonymous Twitter user MrMoneyBags had previously posted controversial photographs on Twitter and, as a result, the alleged copyright holder sought to pull back the veil, ostensibly for the purposes of protecting copyrights.

 

After Twitter defended its user’s rights in court, a favorable ruling meant that MrMoneyBags retained their anonymity. More than a year later, a new DMCA subpoena application filed against Twitter finds itself on the cusp of similar controversy.

DMCA Subpoena Seeks to Identify Twitter Users

The background to this dispute is less than straightforward and for those fresh to the controversy, all but impenetrable. Since the allegations, counterclaims and shifting narratives only serve to distract, our tight focus here relates to part of the fallout; a single DMCA subpoena application seeking an extraordinary amount of personal data belonging to three Twitter users.

 

The DMCA subpoena application was filed on July 14, 2023, at a U.S. district court in California, San Francisco division. The applicant is Michael Williams who appears to be involved in the cryptocurrency/blockchain world. Williams has a Twitter account where participation is restricted. His targets, three Twitter accounts, are mostly wide open.

 

The first account mentioned in the subpoena is operated by Brooke Lacey, who describes herself as a technologist and Cybersecurity Masters Student. Twitter user ‘peabeeandjelly’, whose account no longer exists, and GIRL_SQUAD_OG, an account that remains open but is less easily categorized, complete the trio. Suffice to say, Williams and the Twitter users have not been seeing eye-to-eye lately.

Allegations in the Application

The application, filed by Williams himself, seeks to “identify one or more alleged infringers” said to have posted “copyrighted images” owned by Williams, on Twitter, without first obtaining his authorization.

 

Williams claims that on July 12, July 13, and July 14, notifications were submitted to Twitter via email which identified the content in question, as required under 17 U.S.C. § 512(c)(3)(A).

 

Lacey’s recent retweet of an attorney’s tweet, suggests that at least some allegedly-infringing content was indeed removed.

 

 

The copyrighted material to which Williams claims to hold exclusive rights is listed in the DMCA notices sent to Twitter. Described in one notice as “my personal photo” and accompanied by a URL where it can be viewed for reference, various URLs are identified on Twitter where the users allegedly reproduced the image, in breach of Williams’ rights.

 

Another notice references additional images (MBW-2 to 9) publicly published on the same website, presumably in support of the DMCA takedown notices sent to Twitter.

 

 

Despite Williams appearing pro se, the takedown notices are clear and well-formatted. Whether the images were posted in breach of Williams’ rights largely depends on the context. Liability could be disputed under the doctrine of fair use but since that’s a defense in response to an actual lawsuit, any details would require scrutiny – at huge expense – under the supervision of a judge.

 

In the meantime, disclosure demands attached the DMCA subpoena application are of immediate interest. A court clerk usually signs off on DMCA subpoenas without a judge getting involved. In this exceptional application, the details suggest that this process is unlikely to be straightforward and also risks much broader controversy.

Proposed DMCA Subpoena

DMCA subpoena applications regularly seek significant levels of personal information held by service providers. A request typically aims to obtain names, email and physical addresses, IP addresses, login times, even details of financial transactions, such as payment of invoices or subscriptions, for example.

 

In most cases these alleged infringers are intentionally anonymous and since the point of a DMCA subpoena is to enable rightsholders to identify anonymous infringers, any grain of information has the potential to progress an investigation. In the Twitter matter discussed here, at least one of the alleged infringers, Brooke Lacey, is well known online so it’s very unlikely that a DMCA subpoena is the only means of identifying her.

 

As for the rest of the disclosure demands, ‘comprehensive’ may lack suitable scope. Our summary of those demands are listed as follows:

 

– All direct messages exchanged between @brookejlacey, @peabeeandjelly since May 1, 2023
– Full names, email/physical addresses, dates of birth, gender, occupations, and photographs
– All past and current usernames, including dates when usernames changed
– Dates and times when profiles were created and the associated IP addresses
– All IP address-containing logs along with dates, times and users’ physical locations
– All direct messages, both sent and received, by the users, since May 1, 2023
– Details of websites or other links in the users’ biographies
– Every Tweet and copies of all photographic images the users have ever posted
– All IMEI (unique cell phone identifier) numbers collected from the users’ phones
– All user data collected from any website posted to the users’ biographies
– Information of accounts (open/closed) linked to the users’ IP addresses or IMEIs
– The users’ billing information
– Details of other apps the users’ downloaded to their mobile phones

 

Several aspects of these requests are not unusual; after all, disclosure of personally identifying information is the clear purpose of DMCA subpoena applications.

 

Among other things, the key issues here relate to the scope of the information being sought, whether that information is purely for the purpose of protecting copyright, and how such disclosures might affect innocent third parties.

Privacy Risks, Irrelevant Disclosure

While disclosure of dates of birth may have relevance when dealing with a minor, the relevance of someone’s gender or occupation to what appears to be a relatively minor copyright claim, seems minimal. Obtaining copies of the users’ personal photographs seems overly personal, not to mention ironic given the circumstances.

 

In general, overly broad requests for information predating alleged infringements and even those more current, raise questions of strict relevance to the matter in hand. Information obtained via a DMCA subpoena process cannot be used for any other purpose beyond protecting copyright but since enforcement is almost non-existence, limited but sufficient disclosure is essential.

 

Open-ended requests for disclosure of all IP addresses logs, physical locations, and the actual content of all direct messages, have enormous privacy implications for the Twitter users and any number of entirely innocent people. When taken as a whole, the entire package of demands seems more suited to a process overseen by a judge as part of a properly filed lawsuit. A $47 administrative matter seems an entirely unsuitable venue given the issues at stake.

 

One final thought relates to the impact this type of request may have on Twitter itself. It raises the prospect of any Twitter user posting a single picture without permission, having almost every detail of their online and private lives even remotely connected to Twitter, being disclosed to any third party, based on a simple allegation. Copyright disputes have a tendency to favor rightsholders but as last year’s case shows, opportunities to push back definitely exist.

 

For these and related reasons it seems highly unlikely that Twitter will comply to the extent demanded in the application. Unfortunately, surprises happen all the time, often at the worst possible time.

 

The DMCA subpoena application can be found here (1,2, pdf)

 

Image credit: Geralt/Pixabay