Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Julia Allison Baugher,
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`Plaintiff,
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`v.
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`GoDaddy.com LLC,
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`No. MC-19-00034-PHX-JJT
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`ORDER
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`Defendant.
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`At issue is the Amended Motion to Quash Subpoena Issued Pursuant to 17 U.S.C.
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`§ 512(h) (Doc. 22, Mot.), to which Applicant Julia Allison Baugher filed a Response (Doc.
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`24, Resp.) and Movants filed a Reply (Doc. 25, Reply).
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`I.
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`BACKGROUND
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`Julia Allison Baugher is a writer whose work has been published in many
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`periodicals and a commentator who has appeared in a variety of television programs. She
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`has built a strong following online, including on social media platforms, and she claims
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`she has a copyright in all her work and the images she has posted on social media. In 2019,
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`a group of online bloggers (the “Does”) posted certain of Baugher’s images and work—
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`including a book proposal with pre-publication manuscript—on their blog without her
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`permission for the purpose of inviting criticism of it. Baugher claims these posts constituted
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`copyright infringement. On September 24, 2019, after Baugher learned of the posts, she
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`sent a take-down notice under the Digital Millennium Copyright Act (“DMCA”)—
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`specifically, 17 U.S.C. § 512(c)—requesting that the blog’s registrar, GoDaddy.com, LLC,
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 2 of 10
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`remove the accused blog posts. GoDaddy took down the blog posts on September 27, 2019,
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`without any DMCA counter-notification from the Does requesting put-back of the removed
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`posts.
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`On October 7, 2019, Baugher filed an Application with this Court for Issuance of a
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`Subpoena under 17 U.S.C. § 512(h) to uncover the identities of the Does (Doc. 1), and the
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`Court issued the Subpoena (Doc. 2). The Does then filed a Motion to Quash (Doc. 4) and,
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`with leave of Court, an Amended Motion to Quash (Doc. 22). The Court now resolves the
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`Amended Motion to Quash.
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`II.
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`ANALYSIS
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`Under 17 U.S.C. § 512(h), a copyright owner may seek a subpoena in U.S. District
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`Court “for identification of an alleged infringer,” so long as the subpoena request includes
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`a copy of the take-down notice made pursuant to § 512(c)(3)(A), a proposed subpoena, and
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`a sworn declaration that the subpoena is sought “to obtain the identity of an alleged
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`infringer and that such information will only be used for the purpose of protecting rights
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`under this title.” Baugher met these requirements, and the Court issued the Subpoena.
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`(Docs. 1, 2.)
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`The Does’ principal argument in their Amended Motion to Quash is that the Court
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`should look behind Baugher’s § 512(c)(3)(A)(v) attestation of a good faith belief that the
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`Does’ use of Baugher’s work and images infringed her copyright in them and examine
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`whether the Does’ use was fair use and thus not infringing. As Baugher argues in her
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`Response, §§ 512(c)(3)(A), (h)(1), and (h)(2) do not provide for such a review; attestation
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`of a good faith belief of infringement is sufficient to send a take-down notice and, based
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`on the notice, request that the Court issue a subpoena.1
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`1 If the Does wished to challenge Baugher’s good faith belief that their use of Baugher’s
`work constituted copyright infringement at the take-down notice stage, the DMCA includes
`a provision allowing the Does to send a counter-notification to that effect to GoDaddy, in
`which instance GoDaddy would have been required to put back the material removed from
`the internet within 14 days unless Baugher filed an action in court. See 17 U.S.C. § 512(g).
`Baugher states the Does did not engage in the counter-notification process or challenge
`Baugher’s attestation of copyright infringement at the take-down notice stage.
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 3 of 10
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`A.
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`The Framework for Resolving a Fed. R. Civ. P. 45 Motion to Quash
`where the Movant Contends a DMCA Subpoena Seeks Information
`Protected by the First Amendment
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`In their Motion, the Does also argue that disclosure of their identities in compliance
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`with the Subpoena would violate their First Amendment right to speak anonymously, and
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`they therefore request that the Court quash the Subpoena under Federal Rule of Civil
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`Procedure 45(d)(3)(A)(iii). Section 512(h)(6) of the DMCA provides that “the procedure
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`for issuance and delivery of the subpoena . . . shall be governed to the greatest extent
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`practicable by those provisions of the Federal Rules of Civil Procedure governing the
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`issuance, service, and enforcement of a subpoena duces tecum.” Rule 45(d)(3)(A)(iii)
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`states that a district court must quash a subpoena that “requires disclosure of privileged or
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`other protected matter.” Thus, as several District Courts in the Ninth Circuit have
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`concluded, “a motion to quash a DMCA subpoena may properly raise an objection on the
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`basis that the subpoena would require disclosure of matter protected by the First
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`Amendment”—here, the Does’ identities. Signature Mgmt. Team, LLC v. Automattic, Inc.,
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`941 F. Supp. 2d 1145, 1152 (N.D. Cal. 2013).
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`Whether the Does engaged in copyright infringement is relevant in resolving the
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`Motion to Quash for several reasons. First, the title of § 512(h), “Subpoena to identify
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`infringer,” indicates the purpose of the subpoena; if the Does were not infringers, the
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`§ 512(h) subpoena is not properly aimed at them.
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`Second, resolving a motion to quash under Rule 45 ordinarily requires a balancing
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`of the need for disclosure of the requested information against the target of the subpoena’s
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`interests in protecting disclosure. Here, the Does seek protection from disclosure under the
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`First Amendment because, as a general proposition, the First Amendment protects the right
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`to speak anonymously. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); see
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`also In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (stating the
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`right to speak anonymously applies equally to online speech). But “to the extent that
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`anonymity is used to mask copyright infringement or to facilitate such infringement by
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 4 of 10
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`other persons, it is unprotected by the First Amendment.” Arista Records, LLC v. Doe 3,
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`604 F.3d 110, 118 (2d Cir. 2010); see also Harper & Row Publishers, Inc. v. Nation
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`Enters., 471 U.S. 539, 568 (1985) (holding that First Amendment was not a defense to
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`copyright infringement claim); cf. In Re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244,
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`260 (D.D.C. 2003) (stating “there is some level of First Amendment protection that should
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`be afforded to anonymous expression on the Internet, even though the degree of protection
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`is minimal where alleged copyright infringement is the expression at issue”) (reversed in
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`the outcome, 351 F. 3d 1229 (D.C. Cir. 2003)); Art of Living Found. v. Does 1-10, 2011
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`WL 5444622, at *6 (N.D. Cal. Nov. 9, 2011) (stating “evidence of copyright infringement
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`does not automatically remove the speech at issue from the scope of the First
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`Amendment”).
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`The core framework question the Does’ Motion presents is whether § 512(h)(6) and
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`its command for the Court to apply Rule 45 “to the greatest extent practicable” in enforcing
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`DMCA subpoenas means that the Does’ Motion triggers a burden on Baugher to
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`demonstrate a prima facie claim of copyright infringement, or, as Baugher argues (Resp.
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`at 24-25), whether the text of the DMCA—in particular, §§ 512(c)(3)(A), (h)(1), and
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`(h)(2)—relieves Baugher of any such burden by requiring only an attestation of a good
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`faith belief of copyright infringement. As the court in Signature Management Team found,
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`it is the former. 941 F. Supp. 2d at 1157-58 (stating that the court must determine whether
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`the party seeking the information under the DMCA demonstrated a prima facie claim of
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`copyright infringement as part of a balancing test applied to resolve a motion to quash).
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`Indeed, even the case Baugher cites (Resp. at 12) to support her position that the Court
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`should not analyze whether the target of the subpoena engaged in copyright infringement,
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`In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to:43SB.com,
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`stated that “[t]he party seeking a subpoena must also make a prima facie showing of
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`copying” and proceeded to resolve that question. 2007 WL 4335441, at *4 (D. Idaho
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`Dec. 7, 2007).
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 5 of 10
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`Whether a movant engaged in copyright infringement is critical to assessing the
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`scope of First Amendment protection the movant is entitled to as part of the balancing test
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`used to resolve a motion to quash under Rule 45. And Congress explicitly directed courts
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`to apply Rule 45 “to the greatest extent practicable” in § 512(h)(6). As the Signature
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`Management Team court stated, the provisions of the DMCA “cannot be read to authorize
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`enforcement of a DMCA subpoena in violation of the First Amendment.” 941 F. Supp. 2d
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`at 1153. Put another way, construing §§ 512(h)(1) and (h)(2) as granting an automatic right
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`to Baugher to obtain the Does’ identities by subpoena based on her attestation of a good
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`faith belief of the Does’ copyright infringement would render the Does’ ability to quash
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`the subpoena on constitutional grounds, as provided for in § 512(h)(6) and Rule 45, a
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`nullity.
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`B.
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`The Motion to Quash
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`In instances in which online speech raises at least some constitutional protections,
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`courts in the Ninth Circuit have applied “a two-part test for determining whether to allow
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`discovery seeking the identity of an anonymous defendant: (1) The plaintiff must produce
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`competent evidence supporting a finding of each fact that is essential to a given cause of
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`action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must
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`compare the magnitude of the harms that would be caused to the competing interests by a
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`ruling in favor of the plaintiff and by a ruling in favor of the defendant.” Art of Living, 2011
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`WL 5444622, at *7 (citing Highfields Cap. Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969, 975-
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`76 (N.D. Cal. 2005)). Put more directly, if the Does’ speech raises First Amendment
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`concerns, the Court will evaluate whether Baugher “demonstrated a prima facie case of
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`copyright infringement” and conduct “a balancing of harms.” Signature Mgmt. Team, 941
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`F. Supp. 2d at 1157. But “[t]he degree of scrutiny varies depending on the circumstances
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`and the type of speech at issue.” Id. at 1154. Where the nature of the speech is public
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`criticism, even if not explicitly political or religious, and disclosure of an anonymous
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`speaker’s identity could have a chilling effect on such public criticism, then at least some
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`First Amendment concerns are at stake. Art of Living, 2011 WL 5444622, at *6-7.
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 6 of 10
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`1.
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`Nature of the Speech
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`Similar to the circumstances in Signature Management Team, in this case “the
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`alleged infringement involved the anonymous online posting of copyrighted material in the
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`context of a critical campaign” against the individual allegedly holding copyrights to the
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`material. 941 F. Supp. 2d at 1156. Thus, “although [the Does’] speech in question, posting
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`a verbatim copy of copyrighted work, was neither political nor religious, it at least raises
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`significant constitutional concerns.” Id. at 1157 (citing Art of Living, 2011 WL 5444622,
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`at *6).
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`2.
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`Prima Facie Claim of Copyright Infringement
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`“To establish a prima facie case of copyright infringement, a party must show
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`(1) ownership of a valid copyright and (2) violation by the alleged infringer of at least one
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`of the exclusive rights granted to copyright owners by the Copyright Act.” Id. (citing
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`17 U.S.C. § 501(a); UMG Recordings, Inc. v. Augusto, 628 F.3d 1175, 1178 (9th Cir.
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`2011)). In this context, Baugher “must adduce competent evidence” of each fact essential
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`to a showing of copyright infringement. Highfields, 385 F. Supp. 2d at 975-76. If a
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`certificate of copyright registration is made within five years of the first publication of a
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`work, it “shall constitute prima facie evidence of the validity of the copyright and of the
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`facts stated in the certificate.” 17 U.S.C. § 410(c).
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`Baugher did not register a copyright in the 81-page book proposal with 54-page
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`unpublished manuscript—entitled “Experiments in Happiness”—and two of the 22 photos
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`that the Does allegedly posted on their blog prior to the posting, so the Court will refer to
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`the evidence, to the extent it is available, in evaluating Baugher’s copyright infringement
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`claim with regard to that material.2 In August 2019, Baugher did register a copyright in 20
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`2 Many of the cited decisions resolving a motion to quash were made in the context of
`discovery in an ongoing lawsuit, so evidence was available for the court to review in
`deciding the motion. See, e.g., Art of Living, 2011 5444622, at *1. While pre-litigation
`parties such as those here have generally gathered less evidence, the Court notes it is often
`called on to resolve discovery disputes with less than fulsome evidence. Moreover, the
`parties fully briefed the issues related to Baugher’s claim of copyright infringement and
`the Does’ defense of fair use. The Court thus finds it has sufficient information to resolve
`the Motion to Quash at issue here.
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 7 of 10
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`of the 22 photos the Does allegedly posted, which in and of itself is prima facie evidence
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`of copyright validity for those 20 photos.
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`“As a general rule, copyright vests initially in the author or authors of a work.
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`17 U.S.C. § 201(a). Copyright protection subsists from the moment the work is ‘fixed in
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`any tangible medium of expression.’ 17 U.S.C. § 102(a). Registration is not a prerequisite
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`to valid copyright, although it is a prerequisite to suit. 17 U.S.C. § 408(a), § 411.” S.O.S.,
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`Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th Cir. 1989). The Does do not raise any
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`meritorious legal challenges to Baugher’s copyright in her work and images that they
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`allegedly posted on their blog. They argue generally that Baugher did not register or apply
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`to register a copyright in the book proposal or manuscript (Mot. at 14), but that is not
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`required to hold a valid copyright. And there is no dispute that Baugher’s work and images
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`have the requisite modicum of creativity so as to be considered copyrightable expression.
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`See Feist Publ’ns v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Baugher has thus shown
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`sufficient prima facie evidence of copyright ownership in the work and images.
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`Likewise, the Does point to no evidence that they did not reproduce Baugher’s work
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`and images on the blog. While the Does’ briefing contains generalized denials, no evidence
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`before the Court supports those denials.
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`3.
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`Fair Use
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`The Does assert instead that any use they made of Baugher’s work and images was
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`fair use, which the Copyright Act, 17 U.S.C. § 107, explains is permissible as a non-
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`infringing use. Lenz v. Universal Music Corp., 815 F.3d 1145, 1152 (9th Cir. 2016). The
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`Ninth Circuit has characterized fair use as “uniquely situated in copyright law so as to be
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`treated differently than traditional affirmative defenses.” Id. at 1153. As it pertains to the
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`DMCA, “because 17 U.S.C. § 107 created a type of non-infringing use, fair use is
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`‘authorized by law’ and a copyright holder must consider the existence of fair use before
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`sending a takedown notification under § 512(c).” Id. Thus, the copyright infringement
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`examination implicates the fair use defense the Does have raised in their Motion, albeit in
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`a slightly different way than they argued. But this makes sense, because “First Amendment
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 8 of 10
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`concerns are . . . addressed in the copyright field through the ‘fair use’ doctrine.” L.A. News
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`Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992). Although fair use “is not an infringement”
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`but rather “a right,” “the burden of proving fair use is always on the putative infringer.”
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`Lenz, 815 F.3d at 1152-53 (quoting Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22
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`(11th Cir. 1996)).
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`The Copyright Act, 17 U.S.C. § 107, provides that
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`the fair use of a copyrighted work, . . . for purposes such as criticism [or]
`comment. . . , is not an infringement of copyright. In determining whether
`the use made of a work in any particular case is a fair use the factors to be
`considered shall include—
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`(1)
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`the purpose and character of the use, including whether such use is of
`a commercial nature or is for nonprofit educational purposes;
`the nature of the copyrighted work;
`the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
`the effect of the use upon the potential market for or value of the
`copyrighted work.
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`(2)
`(3)
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`(4)
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`The fact that a work is unpublished shall not itself bar a finding of fair use if
`such finding is made upon consideration of all the above factors.
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`See also Lenz, 815 F.3d at 1152.
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`With regard to the first factor, the Does contend that their use of the work and
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`images was for the purpose of criticism or comment and that it was non-commercial, but
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`they have not proffered evidence to support those arguments. Referring to the evidence
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`produced by Baugher, by way of sample screen shots of the blog, most of Baugher’s work
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`was posted without substantial comment or criticism by the Does. (E.g., Doc. 9-2 at 87-90,
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`evidence of the Does’ posting of entire book proposal.) The essence of fair use for the
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`purpose of comment or criticism is the comment or criticism. Posting a work and implicitly
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`inviting comment or criticism is the same as simply copying the work; any work made
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`public will almost always inspire an opinion in the reader, but the reader’s implicit opinion
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`is not the same as comment or criticism formed and made by the blogger who copies the
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 9 of 10
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`copyright-protected work. In short, the Does’ use was not transformative, as required to be
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`fair use. Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1174-75 (9th Cir. 2012).
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`Moreover, to the extent the Does’ comments and criticism of Baugher’s photos could be
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`considered transformative, the evidence shows it was connected to solicitations by the Does
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`for money. (Doc. 24-1 at 4-13.) The Does, who have the burden to show fair use, point to
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`no evidence that the purpose and character of their use of Baugher’s work and images
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`supports a finding that it was fair use.
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`As for the second factor, the nature of the work and images the Does posted, the
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`Court agrees with Baugher that the book proposal, manuscript, and images had a high level
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`of creativity and were unpublished—or distributed on a limited basis by Baugher herself—
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`both of which weigh against a finding of fair use. Monge, 688 F.3d at 1177; see also Harper
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`& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555 (1985) (generally, “the
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`author’s right to control the first public appearance of his undisseminated expression will
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`outweigh a claim of fair use”). The Does produced no substantial evidence to the contrary.
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`The third factor also weighs against a finding of fair use, because the evidence
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`before the Court shows the Does reproduced the materials in their entirety. As for the fourth
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`factor, the Does again proffer no evidence, as was their burden, to show their use had no
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`effect on the value of Baugher’s book proposal, manuscript, and photos; the Does engage
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`at best in speculative argument. See Monge, 688 F.3d at 1181. For all these reasons, in the
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`context of their Motion to Quash, the Does fail to demonstrate that their use of Baugher’s
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`work was fair use and thus not infringing.
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`4.
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`Balancing of Harms
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`Because Baugher has successfully demonstrated a prima facie claim of copyright
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`infringement and the Does have not demonstrated fair use, the Does have little, if any, First
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`Amendment protection against disclosure of their identities. This is made clear by the
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`DMCA itself, which allows Baugher to obtain a subpoena to uncover the Does’ identities
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`as alleged copyright infringers and in the absence of a showing that disclosure is protected
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`under Federal Rule of Civil Procedure 45(d)(3)(A)(iii). Baugher’s interest in discovering
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`Case 2:19-mc-00034-JJT Document 26 Filed 10/22/21 Page 10 of 10
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`the Does’ identities is clear in the context of bringing a suit for copyright infringement. As
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`a result, the Court must find that Baugher is entitled to uncover the Does’ identities. The
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`Does’ fears that that disclosure of their identities will be misused is addressed both by the
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`DMCA itself, which states the identities will only be used for the limited purpose of
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`protecting the applicant’s copyright, 17 U.S.C. § 512(h)(2)(C), and Baugher’s attestation
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`to the same (Doc. 1-1 at 3).
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`IT IS THEREFORE ORDERED denying the Amended Motion to Quash
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`Subpoena Issued Pursuant to 17 U.S.C. § 512(h) (Doc. 22).
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`IT IS FURTHER ORDERED directing the Clerk of Court to close this matter.
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`Dated this 22nd day of October, 2021.
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`Honorable John J. Tuchi
`United States District Judge
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