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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE DMCA SUBPOENA TO REDDIT,
`INC.
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`Case No. 26-mc-80128-TSH
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`ORDER RE: MOTION TO COMPEL
`RESPONSE TO DMCA SUBPOENA
`PURSUANT TO 17 U.S.C. § 512(H)
`Re: Dkt. No. 1
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`I. INTRODUCTION
`Alireza Shafiei seeks an order compelling Reddit, Inc. to respond to his subpoena seeking
`the identity of a Reddit user operating under the username “tiktoktruthseeker,” who Shafiei alleges
`has unlawfully used his copyrighted video. ECF No. 1. Reddit filed an opposition (ECF No. 10)
`and Shafiei filed a reply (ECF No. 11). The undersigned finds this matter suitable for disposition
`without oral argument. See Civ. L.R. 7-1(b). For the reasons stated below, the Court DENIES the
`motion.1
`II. BACKGROUND
`A. Factual Background
`Reddit is a community of online communities. Chopra Decl. ¶ 2, ECF No. 10-1. Within
`those communities—known as “subreddits”—users gather to discuss shared interests. Id. Users
`generally participate on the platform pseudonymously, and Reddit does not require that they use or
`provide Reddit with their legal names or addresses. Id.
`Shafiei is a TikTok content creator with approximately one million followers and over 1.3
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`1 The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 5,
`9.
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`million likes, operating under the username @PrettyBoyAli24. Shafiei Decl. ¶¶ 2-3, ECF No. 1-2.
`He frequently livestreams—sometimes up to 16 hours per day—and derives income from
`TikTok’s livestream gifting system that relies on audience engagement and his online reputation.
`Id. ¶¶ 5, 7-8.
`In March 2025 a Reddit user with the username u/tiktoktruthseeker posted to the
`r/FavoritedRanksDrama subreddit a 27‑second clip from one of Shafiei’s TikTok livestreams,
`accompanied by a paragraph of critical commentary. Mot. at 1, 3; Shafiei Decl. ¶ 4. The clip
`depicts Shafiei speaking directly to the camera, using language such as “Your mom was a bitch”
`and “When you were in school you got fucked in the ass.” Mot. at 3; Jones Decl., Ex A, ECF No.
`1-1.2 The post, titled “PBA: Weaponizing SA, Homophobia, and Moms for his Angry Rant,”
`received 42 upvotes.3 Id.; Jones Decl., Ex. A. The user expresses displeasure with Shafiei’s
`reference to anal sex in school, interpreting it as an attack on the gay community and suggesting
`sexual abuse of children. Jones Decl., Ex. A (“The fact that he went on his platform in the past to
`attack someone, then twisted it into a homophobic jab, is one of the most repulsive things I’ve
`ever heard. . . When you reference something done to someone in school, you’re not talking about
`consenting adults!”). The user also expresses displeasure with Shafiei’s insults directed at another
`person’s mother. Id. (“And once again, you called their mother a bitch. . .nothing is off limits for
`you when you spiral.”). The user admonishes Shafiei: “[Y]ou’re not a king. You’re a coward
`wearing a crown that is slowly falling off.” Id.
`Shafiei contends the accompanying commentary is false and defamatory, falsely accuses
`him of bullying and “zero accountability” and a “victim mentality,” and that the Reddit post
`undermines the value of his TikTok page, distorts public perception, and threatens his livelihood.
`Shafiei Decl. ¶¶ 14, 16-17.
`
`2 The Reddit post is located at
`https://www.reddit.com/r/FavoritedRanksDrama/comments/1lykoc9/pba_weaponizing_sa_homop
`hobia_and_moms_for_his/
`3 The text of the post clarifies that PBA refers to “PrettyBoyAli”, Shafiei’s TikTok username.
`Shafiei Decl. ¶ 2-3
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`B. Procedural Background
`On August 22, 2025, counsel for Shafiei sent Reddit a takedown notice based on the
`Digital Millennium Copyright Act, 17 U.S.C. § 512(h) (DMCA), requesting removal of the post,
`identifying the copyrighted work and the allegedly infringing material, and providing the
`statements required by 17 U.S.C. § 512(c)(3)(A). Jones Decl. ¶¶ 1-3.
`On August 28, 2025, the Clerk of Court for the Northern District of Ohio issued a
`subpoena under 17 U.S.C. § 512(h) directed to Reddit seeking identifying information for the
`u/tiktoktruthseeker account. Id. ¶ 5 & Ex. B (subpoena issued in Civil Action No. 1:25MC00040,
`N.D. Ohio). The subpoena was subsequently served on Reddit. Id. ¶ 7.
`On September 8, 2025, Reddit objected to the subpoena and declined to remove the post,
`asserting both procedural objections relating to place of compliance and a substantive objection
`that the post constitutes fair use under 17 U.S.C. § 107. Id. ¶¶ 7-9, Mot. at 4.
`The parties agreed to adjudicate enforcement in this District, and on April 27, 2026,
`Shafiei filed the present motion to compel Reddit’s compliance. Jones Decl. ¶ 9.
`III. LEGAL STANDARD
`The DMCA permits copyright holders to subpoena service providers, like Reddit, for
`information identifying an alleged copyright infringer. See 17 U.S.C. § 512(h). Upon receipt of
`the issued subpoena, the service provider must “expeditiously disclose” the required information
`to the copyright owner, “notwithstanding any other provision of law.” 17 U.S.C. § 512(h)(5).
`However, the DMCA specifies that “the procedure for issuance and delivery of the subpoena, and
`the remedies for noncompliance with the subpoena, shall be governed to the greatest extent
`practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance,
`service, and enforcement of a subpoena duces tecum.” 17 U.S.C. § 512(h)(6). As many courts
`have recognized, this provision incorporates Rule 45 of the Federal Rules of Civil Procedure. See,
`e.g., Cognosphere Pte. Ltd. v. X Corp., 2024 WL 4227594, at *2 (N.D. Cal. Sept. 18, 2024); In re
`DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868, 877 (N.D. Cal. 2022); Signature
`Mgmt. Team, LLC v. Automattic, Inc., 941 F. Supp. 2d 1145, 1153 (N.D. Cal. 2013).
`Rule 45 provides that “the court for the district where compliance is required must quash
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`or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to
`comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of
`privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to
`undue burden.” Fed. R. Civ. P. 45(d)(3)(A). In addition, a court may limit discovery if it
`determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be
`obtained from some other source that is more convenient, less burdensome, or less expensive; (ii)
`the party seeking discovery has had ample opportunity to obtain the information by discovery in
`the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.
`R. Civ. P. 26(b)(2)(C).
`IV. DISCUSSION
`Shafiei argues he holds a valid copyright in the livestreamed audiovisual work and that
`Reddit’s user reproduced a verbatim clip without authorization, infringing his exclusive rights of
`reproduction, distribution, and public display. Mot. at 5, 7. He contends the user’s commentary is
`directed at him personally rather than the work, and that the copying harms the market for his
`content by diminishing page value, distorting public perception, and diverting potential revenue.
`Id. at 7-8, 10. He seeks an order directing Reddit to produce identifying information and to
`remove or disable access to the post and related posts. Id. at 12.
`Reddit responds that the post is protected under the First Amendment because the
`27‑second clip was posted for the purposes of criticism and commentary, not for commercial
`exploitation. Opp’n at 2. It argues that anonymous online speech is protected and, under the
`two‑step framework applied in this District for unmasking subpoenas, Shafiei has not made a
`prima facie showing overcoming fair use. Id. at 1-2, 15. Reddit also opposes Shafiei’s request
`that the Court order removal of content as outside the proper scope of § 512(h) subpoena
`enforcement. Id. at 16.
`A. Legal Standard
`“A recipient of a DMCA subpoena may . . . move to quash on the basis that the subpoena
`would require disclosure of material protected by the First Amendment.” In re DMCA § 512(h)
`Subpoena to Twitter, Inc., 608 F. Supp. 3d at 877. Third party providers such as Reddit can assert
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`the First Amendment rights of their users “based on the close relationship between the platform
`and its users and the ‘genuine obstacles’ users face in asserting their rights to anonymity.” In re
`Reddit, Inc., 2024 WL 477519, at *3 (N.D. Cal. Feb. 7, 2024) (quoting In re Grand Jury
`Subpoena, No. 16-03-217, 875 F.3d 1179, 1183 n.2 (9th Cir. 2017)), appeal dismissed sub nom. In
`re Subpoena to Reddit, Inc., 2025 WL 1766386 (9th Cir. May 13, 2025); In re DMCA § 512(h)
`Subpoena to Twitter, 608 F. Supp. 3d at 878 (“The Ninth Circuit has accordingly recognized that
`internet platforms can assert the First Amendment rights of their users, based on the close
`relationship between the platform and its users and the ‘genuine obstacles’ users face in asserting
`their rights to anonymity.”) (quoting In re Grand Jury Subpoena, 875 F.3d at 1183 n.2).
`“[A]n author’s decision to remain anonymous, like other decisions concerning omissions
`or additions to the content of a publication, is an aspect of the freedom of speech protected by the
`First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). This
`protection applies equally to material published online. In re Anonymous Online Speakers, 661
`F.3d 1168, 1173 (9th Cir. 2011). When adjudicating objections to a request for discovery of
`information that would reveal the identity of an anonymous speaker, a court must consider the
`First Amendment implications of the requested disclosure. Id. at 1176-77; In re DMCA § 512(h)
`Subpoena to Twitter, 608 F. Supp. 3d at 876.
`The First Amendment rights to anonymous speech are not absolute. Signature Mgmt.
`Team, 941 F. Supp. 2d at 1154. Relevant here, there is no First Amendment right to commit
`copyright infringement. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555–
`56, 569 (1985). “However, precedent from this Court and other courts have rejected the notion
`that there should be no First Amendment analysis in evaluating a motion to quash (or enforce) a
`DMCA subpoena.” Cognosphere, 2024 WL 4227594, at *3 (collecting cases). The degree of
`First Amendment scrutiny in a DMCA subpoena matter depends in part on the type of conduct or
`speech at issue. The courts have identified “core” First Amendment expression to be political
`speech and religious speech. McIntyre, 514 U.S. at 347 (“When a law burdens core political
`speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored
`to serve an overriding state interest.”); Signature Mgt. Team, 941 F. Supp. 2d at 1158. Here, the
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`Reddit user’s post is neither political nor religious speech. Still, the unauthorized sharing of
`someone else’s copyrighted work on Reddit “qualifies as speech, but only to a degree.” Sony
`Music Ent. Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564 (S.D.N.Y. 2004); see also Signature Mgt.
`Team, 941 F. Supp. 2d at 1157 (although the “speech in question, posting a verbatim copy of a
`copyrighted work, was neither political nor religious, it at least raises significant constitutional
`issues.”). Accordingly, the DMCA subpoena here is subject to analysis under the First
`Amendment, even if the speech is not “core” First Amendment expression.
`The First Amendment inquiry consists of two steps: “First, the party seeking the disclosure
`must demonstrate a prima facie case on the merits of its underlying [(in this case, copyright)]
`claim[;]and [s]econd, the Court balances the need for the discovery against the First Amendment
`interest at stake.” See In re DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868, 876
`(N.D. Cal. 2022); accord Perry v. Schwarzenegger, 591 F.3d 1147, 1161–65 (9th Cir. 2010).4
`B. Discussion
`To establish a prima facie case of copyright infringement, Shafiei must show: (1)
`ownership of the copyrighted material, and (2) violation by the accused infringer of at least one
`exclusive right granted to copyright holders under 17 U.S.C. § 106. A&M Recs., Inc. v. Napster,
`Inc., 239 F.3d 1004, 1013 (9th Cir. 2001), as amended (Apr. 3, 2001), aff’d sub nom. A&M Recs.,
`Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002), and aff'd sub nom. A&M Recs., Inc. v.
`Napster, Inc., 284 F.3d 1091 (9th Cir. 2002). Among the exclusive rights enjoyed by copyright
`holders are the rights to reproduce the copyrighted work and to prepare derivative works based on
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`4 Shafiei suggests the Court should apply a four-part balancing test adopted from Doe v.
`2TheMart.com, Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001). See Mot. at 11 (articulating four
`factors and citing two cases that apply the 2TheMart test: Castro v. Doe, 2023 WL 9232964, at *5
`(N.D. Cal. Oct. 12, 2023) and Rich v. Butowsky, 2020 WL 5910069, at *3–4 (N.D. Cal. Oct. 6,
`2020)). However, the relevant 2TheMart test involved civil subpoenas seeking the identities of
`nonparty witnesses. 2TheMart.com, 140 F. Supp. 2d at 1095. Here, the balancing applied in In re
`DMCA Subpoena to Twitter is appropriate. In In re DMCA Subpoena to Twitter, as here, the
`plaintiff sought to unmask an anonymous user under the DMCA before any case had been filed or
`any claims had been brought for copyright infringement. 608 F. Supp. 3d at 875; see also Castro,
`2023 WL 9232964, at *1 (seeking to identify a Doe defendant for a defamation claim); Rich, 2020
`WL 5910069, at *2 (seeking to identify an account that provided allegedly defamatory information
`to defendants); compare In re Reddit, Inc., 671 F. Supp. 3d 1022, 1026 (N.D. Cal. 2023) (applying
`2TheMart test because “the Reddit users at issue here are uninvolved third parties.”).
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`the copyrighted work. 17 U.S.C. § 106(1), (2).
`Shafiei states he “created the original audiovisual work at issue and first livestreamed it on
`my TikTok account” and he is “the author and owner of the copyright in that audiovisual work,
`which embodies my original selection, arrangement, and creative expression. I did not license,
`assign, or authorize the Reddit user identified below to reproduce, distribute, or publicly display
`my work.” Shafiei Decl. ¶¶ 10-11. As such, the Court finds he can establish a prima facie case.
`See Cognosphere, 2024 WL 4227594, at *6 (ownership of copyrighted material and violation of
`copyright may be established by declaration); Signature Mgmt. Team, 941 F. Supp. 2d at 1157
`(hearsay attorney declarations can be used to establish a prima facie case of copyright
`infringement). Reddit does not dispute Shafiei’s showing on this point. Instead, it argues Shafiei
`cannot establish a prima facie claim because its user was engaged in “fair use.”
`“[C]opyright law contains built-in First Amendment accommodations.” Eldred v.
`Ashcroft, 537 U.S. 186, 219-20 (2003). “The fair use exception excludes from copyright
`restrictions certain works, such as those that criticize and comment on another work.” Mattel, Inc.
`v. Walking Mountain Prods., 353 F.3d 792, 799 (9th Cir. 2003) (citing 17 U.S.C. § 107); In re
`DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 882 (N.D. Cal. 2020) (“The doctrine of fair
`use provides everything needed to balance the competing interests of the First Amendment and the
`copyright laws.”) (citing Los Angeles News Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992)). As
`such, if the fair use doctrine applies, “[t]here is no need to go further afield, or to treat fair use as
`an element in a broader First Amendment inquiry.” In re DMCA Subpoena to Reddit, Inc., 441 F.
`Supp. 3d at 882.
`Congress codified four factors in the Copyright Act to guide the determination of fair use
`of copyrighted works. In pertinent part:
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`Notwithstanding the provisions of sections 106 and 106A, the fair use
`of a copyrighted work, including such work by reproduction in copies
`. . . for purposes such as criticism, comment, news reporting, teaching
`(including multiple copies for classroom use), scholarship, or
`research, is not an infringement of copyright. In determining whether
`the use made of a work in any particular case is fair use the factors to
`be considered shall include –
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`(1) the purpose and character of the use, including whether such use
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`is of a commercial nature or is for nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the
`copyrighted work.
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`17 U.S.C. § 107 (emphasis added). “The key principle here is Congress’s determination that fair
`use is not a mere defense to copyright infringement, but rather is a use that is not infringing at all.
`As our circuit has concluded, the plain language of Section 107 means that ‘[f]air use is not just
`excused by the law, it is wholly authorized by the law.’” In re DMCA Subpoena to Reddit, Inc.,
`441 F. Supp. 3d at 883 (quoting Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir.
`2016)). “‘[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with
`respect to such use.’” Lenz, 815 F.3d at 1152 (alterations in original) (quoting Sony Corp. of Am.
`v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984)). Fair use “is a non-infringing use.” Id.
`“Consequently, if the fair use inquiry demonstrates that [Reddit’s user] is not an infringer of
`[Shafiei’s] copyrighted works, the subpoena must be quashed.” In re DMCA Subpoena to Reddit,
`Inc., 441 F. Supp. 3d at 883.
`The only authorized purpose for the subpoena was for Shafiei to obtain the identity of
`Reddit’s user to protect Shafiei’s copyrights. See 15 U.S.C. § 512(h)(2)(C) (requiring “a sworn
`declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity
`of an alleged infringer and that such information will only be used for the purpose of protecting
`rights under this title”). “If [Reddit] establishes that [its user] made fair use of the copyrighted
`works, no claim of copyright infringement could plausibly be alleged against him, and the
`subpoena would not be authorized under the DMCA.” In re DMCA Subpoena to Reddit, 441 F.
`Supp. 3d at 883.
`“The fair use factors in Section 107 are not intended to be applied in an isolated and
`mechanical way. They should be explored and weighed together in light of copyright’s purpose.”
`Id. at 884 (citing Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 578 (1994)). “Every
`application of fair use is different, and the inquiry must be made on the specific facts before the
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`Court on a case-by-case basis.” Id. (citing Campbell, 510 U.S. at 577). The doctrine “permits
`[and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would
`stifle the very creativity which that law is designed to foster.” Campbell, 510 U.S. at 577 (internal
`quotation omitted) (alteration in original).
`1. The Purpose and Character of the Use
`“With respect to the first factor, the key question is whether the new use was
`“transformative,” that is, whether the use added some new purpose or meaning to the original.” In
`re DMCA Subpoena to Reddit, 441 F. Supp. 3d at 884 (citing Campbell, 510 U.S. at 579). Shafiei
`argues the new use was not transformative because Reddit’s user “copied and reposted a clip taken
`directly from [his] livestream, reproducing the audiovisual work verbatim.” Mot. at 7; Shafiei
`Decl. ¶¶ 12-13. He maintains “[t]he clip was not edited, reframed, analyzed, or otherwise altered,
`nor was the Copyrighted Content itself the subject of any transformative commentary.” Mot. at 7;
`Shafiei Decl. ¶ 13. Shafiei concedes the post includes a caption criticizing him, but he argues
`“that commentary is directed at Mr. Shafiei personally, not the copyrighted work itself.” Mot. at
`7-8.
`Copying a work for the purpose of criticism or commentary is inherently transformative.
`See In re DMCA Subpoena to Reddit, 441 F. Supp. 3d at 884 (“Darkspilver used the ad and chart
`for criticism and commentary in a manner fundamentally at odds with Watch Tower’s original
`purposes. . . . This was a transformative use.”). In In re DMCA Subpoena to Reddit, an
`anonymous Reddit user sought to quash a DMCA subpoena seeking to unmask his identity. Id. at
`877. The user posted images of a religious organization’s documents to a subreddit dedicated to
`former adherents of the religion as part of a post criticizing the organization’s fundraising and data
`collection practices. Id. at 878-79. The religious organization issued a Section 512(h) DMCA
`subpoena to Reddit seeking the user’s identity, claiming copyright infringement. Id. at 879.
`Evaluating each of the fair use factors under 17 U.S.C. § 107, the court quashed the subpoena
`because the posts were non-infringing fair use. Id. at 887. With respect to the first fair use factor,
`the court recognized that there was “no material dispute” that the Reddit user had transformed the
`material by posting them for criticism and commentary. Id. at 886. Even though the material was
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`copied and “largely in their original and unaltered states,” the court found that “physical changes
`are not required for a new use to be transformative. What matters is that [the Reddit user] used the
`[material] to express ‘something new, with a further purpose or different character, altering the
`first with new expression, meaning, or message.’ The ‘something new’ was criticism of Watch
`Tower’s fundraising and data collection practices, a quintessential fair use right.” Id. at 884-85.
`Here, too, the Court finds the use was transformative. The Reddit user’s post takes a 27-
`second clip from Shafiei’s livestream and comments on his rhetoric. The post’s title, “PBA:
`Weaponizing SA, Homophobia, and Moms for his Angry Rant,” and the body of the post provide
`criticisms of Shafiei’s language, including his references to an individual’s mother, anal sex, and
`child sexual abuse. Jones Decl., Ex. A. Even though the Reddit user included an unaltered clip
`from Shafiei’s livestream, what matters is that the poster used it to express criticism of Shafiei’s
`rhetoric. As such, the Reddit user’s posting of the clip is a transformative fair use rather than
`infringement. Although Shafiei argues the user’s reproduction of the clip “verbatim,” without
`alteration, is not transformative, “physical changes are not required for a new use to be
`transformative.” In re DMCA Subpoena to Reddit, 441 F. Supp. 3d at 884. Criticism of Shafiei’s
`conduct is “a quintessential fair use right expressly protected by Section 107,” which “transform[s]
`the purpose and expressive content” of the material, regardless of whether its physical form is
`changed. Id. at 885. Shafiei also argues the user “could have expressed the same opinions
`without reproducing the copyrighted clip at all.” Mot. at 8. However, “a use may be justified
`because copying is reasonably necessary to achieve the user’s new purpose. . . [C]ommentary or
`criticism may have compelling reason to ‘conjure up’ the original by borrowing from it.” Andy
`Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 532 (2023). In cases such as
`this, where the post is best understood in the context of the video clip it directly criticizes, such
`use is justified.
`In the alternative, Shafiei argues the user’s commentary “is directed at Mr. Shafiei
`personally, not the copyrighted work itself,” and therefore is not transformative. Mot. at 8. This
`contention is inaccurate, as the commentary references and discusses the language used by Shafiei
`in the clip. Compare Jones Decl., Ex. A (Text commentary from the Account User: “And once
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`again, you called their mother a bitch) with id. (Video clip from 0:00 to 0:01, “Your mom was a
`bitch”). Shafiei also argues the post falsely accuses him of “bullying people, having zero
`accountability and victim mentality.” Mot. at 8. But the post critiques Shafiei’s use of language;
`and nowhere does it state he has zero accountability or a victim mentality. See Jones Decl., Ex. A
`(“Family, kids, SA, and trauma; nothing is off-limits for you when you spiral.”). Regardless,
`critical commentary such as this is “a quintessential fair use right.” In re DMCA Subpoena to
`Reddit, 441 F. Supp. 3d at 885. Further, even if the post includes personal attacks, disparagement,
`no matter how rude, may still be transformative. For example, in Weinberg v. Dirty World, 2017
`WL 5665023 (C.D. Cal. July 27, 2017), a user of an internet forum posted a copyrighted picture of
`the plaintiff and his wife and offered negative commentary on the plaintiff’s wife’s appearance.
`Id. at *6 (user said “every time I saw her, I thought she is super ugly and awkward looking,”
`mocked the plaintiff’s wife’s ears, and suggested she was a gold-digger). Though the court noted
`the commentary was “plainly . . . rude” and “squarely critical” of the wife’s physical appearance,
`it still found the post was transformative. Id. at *8-9. (While the post was “a direct critique on
`Plaintiff’s wife’s appearance, her status as a model, her husband, and her relationship with her
`husband. . . Such a use is precisely what the Copyright Act envisions as a paradigmatic fair
`use.”); see also Katz v. Chevaldina, 2014 WL 2815496, at *6 (S.D. Fla. June 17, 2014), report and
`recommendation adopted, 2014 WL 4385690 (S.D. Fla. Sept. 5, 2014) (use of copyrighted image
`of plaintiff with the derogatory caption “HE RIPPED OFF SPECIAL NEEDS LITTLE JEWISH
`GIRL” was transformative), aff’d sub nom. Katz v. Google Inc., 802 F.3d 1178 (11th Cir. 2015);
`see also Hannley v. Mann, 2023 WL 3407183, at *5 (C.D. Cal. Mar. 8, 2023) (“[T]he fair use
`inquiry does not ask whether the criticism or parody of the copyrighted work is just or accurate, or
`mean-spirited – other of Plaintiffs’ claims, such as defamation, might implicate such questions –
`but simply whether the use is of the kind that copyright is designed to protect.”).
`Shafiei cites to Henley v. DeVore, 733 F. Supp. 2d 1144 (C.D. Cal. 2010) to support his
`position that “criticism of the author” is not transformative, arguing that “use is not transformative
`where the work is used as a vehicle to attack the author rather than comment on the work.”). Mot.
`at 7-8. However, Henley’s discussion of criticism applies in the context of the comparison
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`between “parody” and “satire” in a fair use analysis. Id. at 1152-56 (quoting Campbell, 510 U.S.
`569, to distinguish between parody’s protection by fair use and satire’s lack of protection). Here,
`the Reddit user’s account is engaged in commentary and criticism, a use distinct from parody and
`satire that is protected by fair use. See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756
`F.3d 73, 84 (2d Cir. 2014) (“Courts often find such uses [of unaltered reproduction] transformative
`by emphasizing the altered purpose or context of the work, as evidenced by the surrounding
`commentary or criticism.”).
`Finally, Shafiei does not argue Reddit’s user made the post for a commercial purpose, and
`Reddit agrees there is no indication the user is getting paid for the content they post, and the post
`has a few dozen upvotes. Opp’n at 10. Regardless, it would be difficult for Shafiei to establish
`that the user’s sharing of a 27-second clip of his livestream was for any commercial purpose. See
`In re DMCA Subpoena to Reddit, 441 F. Supp. 3d at 885 (“Watch Tower makes a passing
`comment that the Reddit posts might have boosted Darkspilver’s status in social media, . . . but
`that suggestion is entirely conclusory, and Watch Tower never explains how posting some
`criticisms of the Jehovah’s Witnesses on a Reddit forum directed to former members could ever
`translate into a profit-making enterprise for Darkspilver.”).
`Accordingly, the Court finds the post was transformative and non-commercial, and this
`factor therefore weighs in favor of fair use.
`2. The Nature of the Copyrighted Work
`The second fair use factor, the “nature of the copyrighted work,” 17 U.S.C. § 107(2), “calls
`for recognition that some works are closer to the core of intended copyright protection than others,
`with the consequence that fair use is more difficult to establish when the former works are
`copied.” Campbell, 510 U.S. at 586. The more creative the original work, the less likely that
`copying will be fair use. Steward v. Abend, 495 U.S. 207, 237 (1990). Likewise, unpublished
`works are entitled to greater copyright protection than published works. Monge v. Maya
`Magazines, Inc., 688 F.3d 1164, 1177-78 (9th Cir. 2012).
`As to the first point, Shafiei’s video was previously published on TikTok and made
`publicly accessible. Shafiei Decl. ¶ 10 (“I . . . first livestreamed [the clip] on my TikTok
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`account.”). The act of publishing weighs in favor of fair use. See Stebbins, 2025 WL 2233208, at
`*6 (“[W]hen a work is posted to platforms such as YouTube, Instagram, and Twitter, the creator
`loses the ability to control either duplication or further distributi