The Curious Case Of Billionaire Brian Sheth, An Anonymous Tweeter, Copyright Law, Twitter, And Some Company That Barely Seems To Exist
from the wtf-is-going-on-here? dept
Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm's other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and "abandon" $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but "Smith prevailed" and so Sheth left. Nothing in that article makes Sheth look particularly bad.
However... an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn't particularly bad. One of them just says "Brian Sheth is the King of Private Equity" with some hashtags:
Some of the tweets could be read obliquely to suggest infidelity:
You'll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that's the next stage of this mystery. An entity called "Bayside Advisory LLC," which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.
Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:
None of the Tweets mention Bayside.... Twitter’s counsel has attempted to learn the connection between Bayside and Sheth or the images at issue but has been unsuccessful.... Bayside does not appear to be registered to conduct business in California, and public searches of Bayside reveal only an Ohio real estate holdings company with no apparent connection to Sheth and no specialization in creating or acquiring copyrights of candid photographs.
There's been a fair bit of back and forth, but to summarize, Twitter argues (correctly) that the 1st Amendment protects anonymity. "Bayside" (whoever that is) argues back (misleadingly) that copyright infringement is not protected by the 1st Amendment. Twitter argues (correctly) that fair use is not infringement, and Bayside argues that it's not fair use. Twitter then argues again that (1) it is fair use, and (2) even if it's not fair use, Bayside doesn't meet the very high bar to expose an anonymous social media user.
Throughout all of this Bayside keeps insisting that it has no connection to Sheth at all and is merely a concerned copyright holder trying to police infringement. This seems exceedingly difficult to believe. However, the company filed a disclosure insisting that there were no other parties of interest in this case, and says that Twitter is wrong in implying that Sheth or someone connected to him are trying to expose MoneyBags:
Twitter falsely claims that Bayside is attempting to unmask a Twitter user (“MoneyBags”) for commenting on a newsworthy billionaire, thereby chilling MoneyBags’ First Amendment speech. (Dkt. 13 at 5). Bayside is not. As was clear in its opposition to the motion to quash (Dkt. 9), Bayside seeks the identity of a copyright infringer pursuant to the DMCA. The First Amendment does not afford protection for copyright infringement, nor are copyright infringer identities protected from disclosure by the First Amendment. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010). Bayside has never requested MoneyBags’ tweets be removed. The commentary in those tweets remained after Bayside’s DMCA notice, and their textual comment is of no concern to Bayside. What is of great concern to Bayside is the unauthorized use of several of its copyrighted Photographs simply as an illustrative aid to those tweets, which does not constitute fair use.
Elsewhere, Bayside is even more emphatic that it has nothing to do with Sheth:
“the photos are exclusively and solely owned and controlled by our client Bayside Advisory LLC, the photos are registered with the United States Copyright Office reflecting that Bayside is the sole owner, Mr. Sheth never had any ownership or control interest in the photos and that Mr. Sheth does not own or control any interest in Bayside.”
For what it's worth, it does appear that Bayside Advisory LLC, using a US Postal Service postal box based in Menlo Park, California, did in fact file a copyright registration for six photos after MoneyBags posted the tweets. The registration claims that two of the photos (registered as a "group") were "published" in 2017 and the four others (also registered together as a group) were "published" in July of 2020. In those registrations, Bayside names Brenda Diaz as the photographer of all six photos. Notably, Bayside insists that protecting copyright is part of what it does:
Contrary to Twitter’s baseless conjecture, Bayside is a communications and strategic advisory firm that, among other things, advises and partners with creators, artists, and entrepreneurs to protect, promote, and champion creative expression. Bayside owns a catalog of photographs (the Photographs are only a small part of the catalog) to exploit for those purposes. What Twitter is attempting to do with its motion to quash is diminish the rights of copyright holders by forcing them to navigate the court system and fight diligently, and at great cost and expense, to get basic information about those who infringe their copyrights.
That would be a hell of a lot more compelling if... the two registrations at issue here weren't the only two registrations for published works that Bayside Advisory has. Earlier this summer (many, many months later) Bayside Advisory did register two more groups of unpublished photographs, but the idea that these photos are "only a small part of its catalog" is, at the very least, not clearly seen in its copyright registration practices.
Now, many months later, the judge has finally issued an order... which only punts the matter for the time being. Basically, the judge says it doesn't have enough info about @CallMeMoneyBags' use of the photos to determine whether or not they are protected by fair use, because MoneyBags is not a party here and hasn't filed anything on his (or her) behalf. So the court says that it has to hear from MoneyBags in order to get the full record and make a fair use determination, and whether or not MoneyBags' anonymity should also be protected:
To the extent the court must reach the issue of whether @CallMeMoneyBags’s use of the photos constitutes fair use, it lacks a well-developed record on which to base any ruling. ... In this case, Twitter states that “[i]t appears the anonymous Twitter user here posted those candid photographs for the purpose of criticizing or satirizing Sheth.” Mot. to Quash 12. Twitter speculates. The purpose and meaning of the tweets is not clear. They include hashtag references which are not obvious. Evidence regarding the user’s purpose and intended meaning is likely available only from the individual(s) who posted the tweets. ... The facts relevant to the first factor may also impact the third, which examines “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”... As the Supreme Court has explained, when examining the third factor, “the enquiry will harken back to the first of the statutory factors” because “the extent of permissible copying varies with the purpose and character of the use.”
Additionally, to the extent the court determines it is necessary and appropriate to “balance ‘the magnitude of the harms that would be caused to the competing interest by a ruling in favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account],’” the court lacks sufficient information to do so.... As noted, Twitter contends that unmasking @CallMeMoneyBags “may invite social ostracism, expose them to harassment, or prevent future employment opportunities,” but this too is speculative.
Accordingly, the court shall give the user(s) of the @CallMeMoneyBags account an opportunity to provide information supporting the foregoing inquiries, including evidence regarding any claim of fair use of the photos and the harms that could result if the court rules in favor of Bayside on the motions to quash and to compel. Twitter shall immediately serve a copy of this order along with the complete briefing on Twitter’s motion to quash and Bayside’s motion to compel on the email address associated with the @CallMeMoneyBags account, and file a declaration attesting to the same by November 10, 2021. By no later than December 10, 2021, the user(s) of the @CallMeMoneyBags account may specially appear and file evidence regarding fair use and/or the harms that may result if the court denies the motion to quash and grants the motion to compel. The user(s) may appear anonymously for the purpose of submitting such evidence. The court will take the matter under submission after December 10, 2021.
Twitter has since told the court that it has sent this ruling to @CallMeMoneyBags, and one hopes that MoneyBags can find himself (or herself) a decent lawyer who understands both fair use and anonymity...
And, of course, there's a lot that's perplexing here. The most obvious candidate for wanting to identify MoneyBags would be Sheth, but Bayside is emphatic (in its court filings) that it's not Sheth, but it's not at all clear who is actually behind Bayside or what Bayside actually does. But if it's not Sheth, then who would be so insistent on finding out who is behind the account, and spending what appears to be significant amount on a lawyer who used to run legal affairs for Universal Music Publishing Group? That's not how most people react to random snapshots being placed on Twitter. It's possible that it's somehow connected to the photographer, Diaz, but, if so, why did she hand over just those six images to Bayside to register and fight this fight? It's all... very perplexing.
Either way, kudos to Twitter for (1) fighting for the right to post anonymously, to criticize people while doing so, and (2) fighting for fair use.
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Filed Under: 512(h), anonymity, brenda diaz, brian sheth, callmemoneybags, copyright, criticism, dmca 512, first amendment, identity, social media, subpoenas
Companies: bayside advisory, twitter
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Methinks the copyright exploiters doth protest too much.
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Bayside reminds me of a copyright trolling firm from about 20 years ago that I first read about on Slashdot, BayTSP. Over the years, I've attempted to research that company (and other similar companies), with little luck (given my unwillingness to spend effort or money, mostly).
It's possible that it's a real company that was hired to do this (though that wouldn't be the same as "having no interest in" for Sheth if he's a client). The fact that little is known about Bayside is eerily similar to how little is public about other copyright trolling firms. Their claim is they try to keep a low profile so as to not invite attack from irate pirates (yeh, that's intentional).
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Correct me if I'm wrong, but if the copyright was registered after the photos were posted, then doesn't that mean that any infringement claim can only be for actual damages? It seems to me that any actual damages would be so low that they wouldn't outweigh cost of litigation. So, why try so hard to ID this user?
Also, registering the copyright after the posting is very suspicious. I mean, I could very easily grab the photos, register them, and then claim I was the rightsholder, if it was my intent just to identify the anonymous poster.
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Re:
Quite clearly, yes, damages will be meaningless. But they could be ordered to cease publishing the photos, which is the real intent.
This isn't necessarily censorial... if I had valuable photos that I wanted to sell to National Enquirer, for instance, I might demand you stop giving them away for free. The test for that would be whether or not they would seek to publish them later, I guess.
Registration after the fact might not be suspicious. One could imagine a scenario where you didn't even realize the photos had been copied and you were waiting to register them until later. But thieves stole copies, and now you're in a hurry to register.
The funny thing is, in the modern world it may be possible to prove which camera took the picture, and if the camera's owner is willing to be witness at trial, then this could actually succeed on merits.
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Re: Re:
I predict the ‘surprise’ plot twist that it will be discovered at some point that Bayside registered someone else’s photographs without actually owning the copyrights.
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Re: Re: Re:
Some with a lot of money wants to find a way to punish someone, you offer a photographer who makes her living taking candid family photos 5 figures for the rights you do that.
UMPG was well aware of how cutting any tiny corner in a copyright case can sink them & a paying off an photographer more than she might earn in a year for a few photos of no value to anyone but the subject or this nice lawyer man...
Also someone needs to check the standard release the photographer uses, if she didn't maintain all rights to the images...
I mean work for hire is work for hire... Thanks Marvel.
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Re: Re:
Well, exactly with that thing, they could have just asked the account to not use those photos, or others from whatever sources they seem to suddenly represent, or upgrade that to a cease and desist demand.
Immediately demanding to know who the individual is, via Twitter and via the courts, seems a pointless expense unless it is worth it for some agenda.
As to registration after the fact, if they are so commercially concerned about their property, they should have registered it. They literally had nothing registered previously, which is odd for ther supposed line of business, however unregistered that may be.
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Re: Re:
If that were the real intent, they would have no interest in demanding the identity of the poster. Clearly their real intent is to find out who this person is (and then, my guess, is to turn over the identity to Sheth so he can take further action).
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What if it is one of the women in the pictures that has a whole lot to hide?
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Re:
The images are alleged to have been published, previously to the tweet(s). That means that the cat's already out of the bag. If she were protesting the unauthorized publication of her image(s), then Bayside should be scouring the 'net for, and bring suit against, other media outlets as well. There's too much coincidence here for me to easily believe such to be the case.
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Re: Re:
I think it's obvious that no matter their motivations or aims, Bayside is scouring the internet for other "unauthorized" copies of the image, and will undoubtedly sue those "infringers" as well if they can discover them.
The cat's not out of the bag. This isn't some trade secret, where others merely knowing of it makes the IP worthless. This is either someone who wants to be the exclusive publisher of the photos, or someone who doesn't want them to be published at all. Copyright protects both of those categories. It protects the former, period, and the latter at least until the images become much more widespread than they currently are.
So far, I have seen no links to alternate copies of the images.
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Re: Re: Re:
This is either someone who wants to be the exclusive publisher of the photos, or someone who doesn't want them to be published at all.
You missed the third and I'd argue much more likely explanation: The photos and copyright claims are merely being used as the excuse/justification to try to unmask the person who posted the tweets.
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Re:
I should've thought of this first...
If she has something to hide, then why did she have a photographer take her picture in the first place? Even if her circumstances have changed in the 4 years since the photoshoot, she still can't just magically erase everything from the entire web.
My gut feeling is that the subject of the photo(s) doesn't even know this is going on. But sometimes my gut is just upset about last night's dinner....
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Re:
The other photos, as near as I was able to determine, were not of the same people.
One of them had, according to TinEye, only ever been seen once online... in the tweet. One does wonder how the image was located.
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The real problem is that Brenda Diaz didn't herself register "her photos" in the first place.
Anyone who "buys the copyrights" to one or more unregistered photos does so for only one of two possible reasons: either to prove that he's abysmally stupid, or he's planning on emulating Prenda, Leibowitz, and other infamous trolls. The same goes for anyone who enters into an agreement to "protect the interests" of an actual copyright holder, essentially having the rights signed over for this purpose.
Time to call in the big guns, and put this asshat out of our misery.
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What very telling timing...
Claims to be in the business of copyright protection but only has registrations on a very small handful of photos with the majority related to this specific case and wouldn't you know it they were only registered months after the person they are trying to unmask used those photos.
Yeah, they can tell the judge whatever the hell they want but I don't believe for a second that this isn't related to Brian Sheth trying to unmask someone who was less than flattering to them as the timing and details of everything would make it 'winning the lottery while being struck by lightning and a meteor simultaneously' levels of unlikely to be anything else.
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Undue Burden
"What Twitter is attempting to do with its motion to quash is diminish the rights of copyright holders by forcing them to navigate the court system..."
Forcing trolls to actually go to court to get what they want?? How could Twitter be so unreasonable!!
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Re: Undue Burden
'How dare you not give me the personal information for the currently anonymous person, I accused them of being guilty and everything!'
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Re: Re: Undue Burden
Wouldn't be the first time IP lawyers expected people to just comply. I used to work for a webhosting company/domain registrar and we'd occasionally get a trademark infringement/counterfeit notice from a law firm representing a well-known maker of very expensive watches demanding that we divulge the domain owner's identity from behind privacy. They quoted a particular case as justification for the disclosure based on a series of reasons (that is, they said "the judge said you must disclose if the conditions on this list are met, and we say they are"), but that wasn't quite accurate. The judge actually said "when the conditions on this list are met, a subpoena for the information is justified." Funny how they didn't respond to me when I pointed that out the subpoena was missing from their request.
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Re: Re: Re: Undue Burden
Unfortunately more often than not there seems to be zero penalty for making bogus legal claims or 'legitimate' ones that maybe 'forgot to include a few minor details' so I expect that far too often that sort of thing works because the target either doesn't know better or doesn't have the ability or resources to fight back.
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Re: Re: Undue Burden
-- anonymous person behind Bayside Advisory LLC's actions
FTFY
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the twist
If you find the photos and look really carefully at the background, you'll see the outline of a private beach house owned by Barbara Streisand.
Probably not, but it's not like any other explanation makes any more sense.
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Re: the twist
Tough choice: Funny, or Insightful? I'll go with Funny! :)
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Re: Re: the twist
You're not limited to just one!
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Personally I doubt Diaz is at the center of this case. The vehement denial that this has anything to do with Sheth is absolutely ludicrous. But considering the folks who've dabbled in deals with the Devil, I mean copyright trolls, handing over their rights to something is not a surprise.
Consider that musicians and bands do this frequently with record labels, under the misguided or willful assumption that it can only be a net plus for them because of all the things the label does - including taking people to court on their behalf. Some of them take genuine offense at the suggestion that labels might not have their best interests at heart.
Again, I doubt this applies to this case. It's far, far likelier that Sheth put together a shell company to make some inconvenient evidence disappear via the "Open Sesame!" that is copyright law, then getting annoyed that the judge didn't pull down their pants on demand. But content creators signing away their rights is hardly anything new.
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"The user(s) may appear anonymously for the purpose of submitting such evidence."
This phrase makes me so fscking happy.
Far to often we've seen people sued in copyright cases where they have to out themselves before they can object to even the most basic ideas (like an IP is not an identifier of a person, no your DC court has no jurisdiction here in Utah, the list goes on and on and on...).
What happens when a "Master of the Universe" finds out someone is talking shit about him??
If you thought it was going to be suck it up and move on... I have this bridge in San Fransisco to sell you.
For literally what is pocket change to Hedge Bro, you can put the fear of god into that poor person who thought they could talk smack about you.
Imagine this is a Nune's case run by someone with an actual brain instead of Biss.
Find the source of the cow's image, purchase the rights, claim copyright, get cows name via a copyright lawsuit for some LLC no ones every heard of over 'stealing' the cow image from them.
Oh look the names out in the open now.
Most people existing as a pseudonym have this as a large fear, exposure of them opens up trying to attack the messenger instead of the message, not to mention the misfortunes of the pissy party no knowing who to blame & what they can bring to bear to make your life horrible.
My brains making connections to things again (TAC and the curse of prophecy) what if this is a new venture into reputation management via copyright?
They know that copying articles postdating them and demanding they be delisted doesn't work or stop the writer.
But buy the rights to an image for a small payment, copyright claim, demand the id of the poster for a copyright claim... yeah no one stops those things yet.
Copyright is sacred & we can't have people willy nilly putting pictures on tweets costing us billions, that the tweets just happen to put our PR client in a bad light, and now we know your name little man... still want to play with the big boys?
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See the gawker legal case that closed down the website years ago it's not unknown for rich people to finance expensive legal cases in order to punish or silence someone they have a grudge against nice to see twitter standing up for fair use which is often ignored by other social media services if they recieve a dmca notice
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If we're being honest
...copyright infringement is not protected by the 1st Amendment.
The first amendment should not be infringed by copyright.
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