X Loses Battle to Protect Genshin Impact Leaker’s First Amendment Anonymity

In November 2023, the publisher of smash-hit videogame Genshin Impact obtained a DMCA subpoena hoping to identify who was behind the leak of unreleased artwork on Elon Musk's X platform. X Corp. challenged the subpoena, citing the user's anonymous speech rights under the First Amendment. In an order published this week, a district court judge denied X Corps' motion to quash, in theory exposing the alleged leaker's identity to Cognosphere.

In November 2023, the publisher of hit videogame Genshin Impact obtained a DMCA subpoena at a California district court to unmask an anonymous alleged infringer.

Cognosphere’s aim was to compel X/Twitter to “disclose the identity, including the name(s), address(es), telephone number(s), and e-mail addresses(es)” of an individual in control of four ‘X’ accounts: @HutaoLoverGI, @GIHutaoLover, @HutaoLover77, and @furinaaLover.

The company claimed that the accounts had leaked unreleased material from Genshin Impact and the purpose of the subpoena was to tackle the alleged infringement. The subpoena was granted but X Corp pushed back and refused to disclose the requested information by the November 22, 2023, deadline.

Unmasking a Third Party, Anonymous Speaker

In a subsequent court filing, X Corp said that Cognosphere was attempting to “unmask third party, anonymous speakers via a subpoena issued under the DMCA.”

The company said it was concerned since it lacked information to show that its users’ rights were being protected. (Note: X refers to four users based on one person to one account. Cognosphere believes one person controls all four accounts)

“X Corp. [..] 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,” the company informed the court.

X Corp. asked 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 need for discovery against the anonymous users’ privacy rights.

Cognosphere described X Corp’s demands as “extraordinary” and said that a “protracted balancing exercise” was not constitutionally required.

X Corp’s Objections and Motion to Quash Denied

In response to an order from Magistrate Judge Peter H. Kang at the District Court (San Francisco Division) for the Northern District of California, back in March the parties filed a joint supplemental letter brief (pdf).

In an order handed down this week, Judge Kang writes that after a review, the Court determined that the dispute could be resolved without the need for oral argument.

X Corp.’s motion to quash the subpoena on First Amendment grounds was denied. The reasons in support of that decision are explained by the court over 15 pages, with the key points raised by the Judge summarized below.

First Amendment Scrutiny

A recipient of a DMCA subpoena may file an objection if it believes it that compliance would require disclosure of material protected by the First Amendment and would conflict with the Federal Rules of Civil Procedure. Since X Corp. filed no objections on FRCP grounds, everything boils down to whether X Corp.’s First Amendment objection is sustainable.

First Amendment scrutiny of a DMCA subpoena includes an assessment of the type of conduct or speech at issue. Courts have identified “core” First Amendment expression to be political speech and religious speech; in this matter, the alleged posting of unauthorized copies of Cognosphere’s Genshin Impact artwork is neither. However, the unauthorized sharing of copyrighted works does qualify as speech, if only to a degree, so analysis is warranted.

The inquiry undertaken by the Judge considered whether Cognosphere had demonstrated a prima facie case on the merits of its copyright claim, and whether the subpoena was obtained in good faith and not for improper purposes. The Judge also considered the information sought and its relevance to Cognosphere’s core claim, and whether the information was obtainable from any other source. These factors were then balanced against the First Amendment interests at stake.

Conclusion: Motion to Quash Denied

The Court found that Cognosphere owns the copyrights to the content in question and that X Corp’s objections failed to undermine the publisher’s prima facie case of copyright infringement. Since Cognosphere acted in good faith and the information sought is directly relevant to the core of its claim, the Court found that Cognosphere’s need for discovery outweighs any First Amendment interests at stake.

The X account holder(s) did not appear at any point in this action, but that had no impact on the Court’s evaluation.

“The fact that the account holder(s) have not appeared in this action does not defeat justiciability and does not impact evaluation of the issues,” the order reads.

“As recognized by other courts, X Corp.’s interests are generally aligned with its users with regard to anonymity and thus, on behalf of its users, X Corp. may adequately raise First Amendment interests in opposing enforcement of the subpoena.”