X Corp’s refusal to comply with the DMCA subpoena aimed at X/Twitter users allegedly leaking unreleased Genshin Impact content online has sparked a legal standoff. Publisher Cognosphere, which obtained the subpoena last November, sees this as a straightforward issue of copyright enforcement. However, X Corp argues that the DMCA subpoena process lacks sufficient judicial oversight, potentially endangering the First Amendment rights of its users.
Action role-playing game Genshin Impact boasts a massive player base, with millions of fans eagerly anticipating new content. However, pre-release leaks are a constant headache for publisher Cognosphere, who sees them as a threat to the game’s integrity.
To combat these leaks, Cognosphere leverages the DMCA’s takedown provisions and subpoenas to compel online platforms like X/Twitter to divulge information about alleged infringers. Once obtained, this information can be used to protect the game’s copyrights, potentially leading to legal action against infringers.
In November 2023, Cognosphere sought a DMCA subpoena from a California district court to uncover the identities behind four Twitter accounts allegedly involved in leaking Genshin Impact content: @HutaoLoverGI, @GIHutaoLover, @HutaoLover77, and @FurinaaLover. The subpoena aimed to identify the individuals responsible for the leaks and prevent further dissemination of copyrighted material.
On November 21, 2023, one day before X Corp. was expected to hand over the personal details behind the accounts, the company responded to the subpoena with written objections. Specifically, it would not be handing over the user information behind any of the accounts listed in the subpoena.
Basis for Dispute: Cognosphere
Following X Corp.’s initial objections, the parties attempted to iron out their differences, including during an in-person meeting on December 28, 2023. When that concluded without resolution, the parties agreed that their dispute should be put before the Court.
In a joint letter to Magistrate Judge Peter H. Kang at the U.S. District Court for the Northern District of California, the parties explain their positions. Cognosphere essentially outlines its compliance with the DMCA subpoena process, noting that for the purposes of the letter, it has offered to focus on two of the four accounts listed in the subpoena; @HutaoLover77 and @FurinaaLover.
Cognosphere asserts that leaked, copyright-infringing artwork and game visuals were posted to these accounts and to the best of its knowledge, no DMCA counter-notifications were filed by the operator(s) in response to its initial DMCA takedown notices. One of the accounts, @HutaoLover77, has been suspended by X for violation of unspecified rules, however.
According to the publisher, its request, “…complied with requirements for obtaining a DMCA subpoena under 17 U.S.C. §512(h). It included [a sworn declaration] and copies of DMCA notifications asserting under penalty of perjury that each was being submitted on the good faith belief that the use of the material in the manner complained of was not authorized by the copyright owner, their agent, or the law. 17 U.S.C. §512(c)(3)(A)(v).”
Basis for Dispute: X Corp.
X Corp.’s position is both straightforward and complex. The primary reason for its non-compliance with the DMCA subpoena strikes at the very heart of the process through which they’re obtained; a signature from a clerk in response to a valid application, with no requirement for a judge to get involved.
“Cognosphere is attempting to unmask third party, anonymous speakers via a subpoena issued under the DMCA,” X Corp. informs the court.
“X Corp., however, is not in a position to determine whether Cognosphere has made the required constitutional and evidentiary showings to unmask those speakers, and has thus stood on its timely free speech objections, such that the parties can obtain a determination from the Court.”
MrMoneyBags: Preventing DMCA Subpoena Abuse
Protecting its users’ right to anonymous speech is important to X / Twitter. In 2020, a DMCA subpoena targeted a Twitter user known only as ‘MrMoneyBags’ with the aim of obtaining their identity based on allegations of copyright infringement. Suspicion that copyright was being abused to prevent ‘MrMoneyBags’ from continuing with unflattering commentary against certain third parties led to Twitter mounting a vigorous and successful defense on its user’s behalf.
X Corp. says the ‘MrMoneyBags’ case recognized that First Amendment safeguards apply in the context of a DMCA subpoena. Before it complies here, the company would like the Court to assess whether Cognosphere’s copyright claim is “sufficient to satisfy any First Amendment free speech safeguards applicable to the anonymous speakers” before balancing Cognosphere’s purported need for discovery against the anonymous users’ privacy rights.
“X Corp. cannot be required to perform those judicial functions upon mere receipt of a DMCA subpoena, and thus asks the Court to engage in the relevant analyses and decide these issues,” the company adds.
“[C]ognosphere must establish it has a compelling need for the user data it seeks, which could thereby unmask users’ identities. X Corp. does not take a position on whether Cognosphere has satisfied this requirement, and respectfully leaves it to the Court to analyze.”
Cognosphere: X Corp. Undermines the DMCA
The polarized opinions in this dispute stem from the very nature of DMCA subpoenas. Through the provision of a streamlined process, copyright holders have the ability to address online infringement through the rapid identification of alleged infringers, without filing a formal lawsuit that authorizes discovery based on the merits.
For X Corp., a process that grants subpoenas without safeguards, in particular the balancing of discovery requests against anonymous users’ privacy rights, risks violating those rights.
Cognosphere says that a “protracted balancing exercise” is not constitutionally required, describing X Corp.’s position as “extraordinary” and contrary to the intentions of Congress when it passed the DMCA.
