ACLU & EFF Step Up To Tell Court You Don't Get To Expose An Anonymous Tweeter With A Sketchy Copyright Claim

from the send-in-the-experts dept

In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth's mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.

The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside's lawyer has fairly strenuously denied Sheth having any involvement.

Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag's identify from being shared. The judge -- somewhat oddly -- said that the fair use determination couldn't be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October...) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.

We were troubled by all of this, and it appears that so was the ACLU and the EFF, who have teamed up to tell the court it got this very, very wrong. The two organizations have filed a pretty compelling amicus brief saying that you can't use copyright as an end-run around the 1st Amendment's anonymity protections.

The First Amendment protects anonymous speakers from retaliation and other harms by allowing them to separate their identity from the content of their speech to avoid retaliation and other harms. Anonymity is a distinct constitutional right: “an 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). It is well-settled that the First Amendment protects anonymity online, as it “facilitates the rich, diverse, and far-ranging exchange of ideas,” Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speaker can use “one of the vehicles for expressing his views that is most likely to result in those views reaching the intended audience.” Highfields, 385 F. Supp. 2d at 981. It is also well-settled that litigants who do not like the content of Internet speech by anonymous speakers will often misuse “discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet.” Dendrite Int’l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).

Thus, although the right to anonymity is not absolute, courts subject discovery requests like the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as the Magistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard when the individual targeted is engaging in free expression. Under Highfields, courts must first determine whether the party seeking the subpoena can demonstrate that its legal claims have merit. Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speech at issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm unmasking may cause.

The filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:

The Magistrate further confused matters by suggesting that a fair use analysis could be a proxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. This suggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve a similar case purely on fair use grounds, on the theory that Highfields “is not well-suited for a copyright dispute” and “the First Amendment does not protect anonymous speech that infringed copyright.”...

That theory was legally incorrect. While fair use is a free-speech safety valve that helps reconcile the First Amendment and the Copyright Act with respect to restrictions on expression, anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover, DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts to unmask internet users who are engaged in commentary. In such cases, as with the blogger in Signature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. They thus raise precisely the same speech concerns identified in Highfields: the use of the discovery process “to impose a considerable price” on a speaker’s anonymity....

ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysis alone to substitute for a full Highfields review gets the question precisely backwards, given the doctrine’s “constitutional significance as a guarantor to access and use for First Amendment purposes.” Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair use prevents copyright holders from thwarting well-established speech protections by improperly punishing lawful expression, from critical reviews, to protest videos that happen to capture background music, to documentaries incorporating found footage, and so on. But the existence of one form of speech protection (the right to engage in fair use) should not be used as an excuse to give shorter shrift to another (the right to speak anonymously).

It also calls out the oddity of demanding that Money Bags weigh in, when its Bayside and whoever is behind it that bears the burden of proving that this use was actually infringing:

Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden of demonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt. No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claims have merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden should not shift to the anonymous speaker, for at least three reasons.

First, constitutional rights, such as the right to anonymity, trump statutory rights such as copyright. Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover, fair use has an additional constitutional dimension because it serves as a First Amendment “safety valve” that helps reconcile the right to speak freely and the right to restrict speech. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create a cruel irony: an anonymous speaker would be less able to take advantage of one First Amendment safeguard—the right to anonymity—solely because their speech relies on another—the right to fair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense that merely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simply as a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016). Second, Bayside itself was required to assess whether the use in question was fair before it sent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explain that assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citing Lenz., 815 F.3d at 1153: “a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)”)

Third, placing the burden on the party seeking to unmask a Doe makes practical sense at this early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside presumably knows—though it has declined to address—the original purpose of the works. And as the copyright holder, it is best positioned to explain how the use at issue might affect a licensing market. While the copyright holder cannot see into the mind of the user, the user’s purpose is easy to surmise here, and the same is likely to be true in any 512(h) case involving expressive uses. With respect to the nature of the work, any party can adequately address that factor. Indeed, both Bayside and Twitter have done so.

The filing also notes that this is an obvious fair use situation, and the judge can recognize that:

While courts often reserve fair use determinations for summary judgment or trial, in appropriate circumstances it is possible to make the determination based on the use itself. See In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022 WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determined during a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federal district court dismissed a copyright claim—without leave to amend—at the pleading stage based on a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v. BMG Music Pub., 512 F.3d 522, 532–33 (9th. Cir. 2008) (affirming motion to dismiss, without leave to amend, fair use allegations where three factors “unequivocally militated” against fair use). See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal. July 17, 2009), aff’d, 422 F. App’x 651 (9th Cir. 2011); Savage v. Council on Am.-Islamic Rels., Inc., 2008 WL 2951281 at *4 (N.D. Cal. July 25, 2008); City of Inglewood v. Teixeira, 2015 WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d 76, 82–83, 88 (S.D.N.Y. 2020), aff’d, 844 F. App’x 436 (2d Cir. 2021); Lombardo v. Dr. Seuss Enters., L.P., 279 F. Supp. 3d 497, 504–05 (S.D.N.Y. 2017), aff’d, 729 F. App’x 131 (2d Cir. 2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin, 64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).

These ruling are possible because many fair uses are obvious. A court does not need to consult a user to determine that the use of an excerpt in a book review, the use of a thumbnail photograph in an academic article commenting on the photographer’s work, or the inclusion of an image in a protest sign are lawful uses. There is no need to seek a declaration from a journalist when they quote a series of social media posts while reporting on real-time events.

And the uses by Money Bags were pretty obviously fair use:

First, the tweets appear to be noncommercial, transformative, critical commentary—classic fair uses. The tweets present photographs of a woman, identified as “the new Mrs. Brian Sheth” as part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealth to “invest” in a new, young, wife. As the holder of rights in the photographs, Bayside could have explained the original purpose of the photographs; it has chosen not to do so. In any event, it seems unlikely that Bayside’s original purpose was to illustrate criticism and commentary regarding a billionaire investor. Hence, the user “used the [works] to express ‘something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’” In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user’s purpose is transformative and, Bayside’s speculation notwithstanding, there is nothing to suggest it was commercial.

The filing also calls out the magistrate judge's unwillingness to consider Twitter's own arguments:

Of course, there was a party in court able and willing to offer evidence and argument on fair use: Twitter. The Magistrate’s refusal to credit Twitter’s own evidence, Order at 7-8, sends a dangerous message to online speakers: either show up and fully litigate their anonymity—risking their right to remain anonymous in the process—or face summary loss of their anonymity when they do not appear. Order at 7. That outcome inevitably “impose[s] a considerable price” on internet users’ ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2d at 980-81. And “when word gets out that the price tag of effective sardonic speech is this high, that speech will likely disappear.”

Hopefully the court reconsiders the original ruling...

Filed Under: 1st amendment, anonymity, brian sheth, callmemoneybags, copyright, dmca 512, fair use, subpoena
Companies: aclu, bayside advisory, eff, twitter

Twitter Asks Court To Reconsider Order To Unmask Anonymous Critic Of A Billionaire Over Questionable Copyright Claims

from the you-can-still-find-fair-use dept

On Friday we got around to posting an article about the very, very strange case of a shell company with almost no presence filing a DMCA 512(h) subpoena to Twitter seeking the identity of the person behind the @CallMeMoneyBags account, that has a history of mocking wealthy private equity bros. The subpoena came from an operation called Bayside Advisory, which registered the copyrights for a few images that MoneyBags had posted to the Twitter account, all typical social media photos, showing a young woman. The MoneyBags account implied that the woman in the photos was the mistress of a billionaire, Brian Sheth.

The copyright on the photos was registered after these tweets, by this operation Bayside Advisory, which doesn't seem to have any actual presence, and had never registered any other copyrights until these photos. The registration says that the "photographer" on all of the photos is a woman named Brenda Diaz. What was just pointed out to me, however, is that there is very, very strong evidence that Diaz is not, in fact, the photographer, but rather the woman in the photos. I have now seen other social media accounts from the person and they all involve some variation on the name Brenda Diaz. So that at least raises some questions about the validity of the registration itself.

Twitter sought to quash the subpoena noting, accurately, that it seemed quite obviously to be an attempt to intimidate the author of the MoneyBags account. Bayside, for its part, claimed quite explicitly, that it had nothing to do with Sheth (though it has said nothing about Diaz). The court ruling we wrote about on Friday (which came right before New Years), said that Twitter had to cough up the name. Back in the fall, the court had told Twitter to alert the person behind the MoneyBags account that they should file something with the court to help the court work out its fair use analysis.

While Twitter says it emailed the info to the email address it had on file it's unclear if the person behind the MoneyBags account ever saw it (the account stopped posting back in October). Either way, MoneyBags did not submit any filing on their behalf, and so the magistrate judge said that since they haven't made the case for why the posting of the photos was fair use, the court won't say that they're fair use, and therefore Twitter must cough up the name.

Soon after I posted that story, Twitter asked the court to reconsider. The summary of the filing is quite clear:

At issue is a subpoena issued to Twitter by Bayside Advisory LLC under 17 U.S.C. § 512(h) that seeks information sufficient to identify a Twitter user, @CallMeMoneyBags, purportedly as a precursor to a copyright claim. Bayside alleges that @CallMeMoneyBags infringed Bayside’s copyrights that it holds on a handful of candid snapshots of women. But @CallMeMoneyBags appears to be engaging in a fair use of the snapshots, using them to criticize billionaire Brian Sheth. Concerned that the subpoena is designed to suppress speech critical of a billionaire, rather than vindicate a valid copyright claim, Twitter moved to quash the subpoena, arguing that Bayside has not satisfied the First Amendment safeguards applicable to unmasking anonymous online speakers.

Critical to Twitter’s motion to quash is the recognition that enforcement of this subpoena is not the “first step” of a copyright claim—it is instead the end. Once the user is unmasked, immeasurable First Amendment harm will be done, critical speech will be chilled, and Bayside will have accomplished its goal. See Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969, 980 (N.D. Cal. 2005). As this Court has previously recognized, “enforcing a subpoena in this kind of setting poses a real threat to chill protected comment on matters of interest to the public. Anonymity liberates.”

Twitter respectfully notes that it appears the magistrate judge's ruling made some unfortunate mistakes:

First, while the burden of establishing fair use is “always” on the putative infringer in a copyright action, this is not a copyright action. It is pre-suit discovery being sought from Twitter about one of its users. A platform’s ability to assert the First Amendment’s protections on behalf of its anonymous users is well-established and is not diminished upon mention of copyright. And as a matter of policy, a platform must be permitted to raise fair use on behalf of its users to protect continued creative fair use on that platform and to prevent copyright law from being weaponized to suppress and censor speech critical of a public figure.

Second, regardless of who bears the burden of establishing fair use, the record presently before the Court establishes that the Tweets at issue did not infringe on Bayside’s copyrights because they constituted fair use. The Tweets, from which the user could not derive any revenue, contained candid images of scantily-clad women beside that user’s own critical commentary, such as: “The only thing better than having a wife…is having a hot young girlfriend” and “This is how he spends his money. I would say this is a good investment!” While further testimony from the anonymous user might assist in a fair use inquiry, it is not necessary. The evidence already existing before the Court—the Tweets themselves—is sufficient to establish fair use.

Third, and finally, Twitter objects to the Order’s determination that it could not engage in the balancing of harms required by the prevailing First Amendment standard without evidence submitted by @CallMeMoneyBags. That burden is reversed; it is Bayside who bears the burden of establishing that the benefit it would enjoy from unmasking overcome the self-evident harms that it would cause. Consequently, this Court has, on several occasions, undertaken that balancing test without an anonymous user’s participation. And Bayside has not, in any briefing thus far, articulated any harm it would suffer should the subpoena be quashed. That silence is further support for Twitter’s position that Bayside is not pursuing this subpoena in anticipation of a copyright action. It is a company “that barely seems to exist,” attempting to suppress commentary criticizing a billionaire by alleging “infringement” with no commercial impact on the copyrighted images. The balance of harms does not tip in its favor.

Hopefully the court will revisit that initial decision and recognize that we don't just throw out the 1st Amendment because someone somewhere screams "copyright!"

Filed Under: 1st amendment, 512(h), anonymity, brenda diaz, brian sheth, callmemoneybags, copyright, dmca, subpoena
Companies: bayside advisory, twitter

Court Orders Twitter Reveal Anonymous Tweeter Over Sketchy Copyright Claim, Because That Tweeter Won't Show Up In Court

from the not-how-it's-supposed-to-work dept

Back in November we wrote about a very bizarre attempt to abuse copyright law to uncover who was behind a Twitter account, @CallMeMoneyBags. That account tweeted out various things mocking and shaming various extremely wealthy people, including billionaire Brian Sheth, a private equity bro. Some of the tweets in the fall of 2020 lightly mocked Sheth, including suggesting potential infidelity. The images themselves appeared to be social media-type photos of young women (or possibly just one young woman).

Sometime later, an organization called "Bayside Advisory LLC" showed up, claiming to hold the copyright on those images, and demanding Twitter take down the images -- which the company did. However, Bayside also tried to use the more controversial DMCA 512(h) subpoena process to try to uncover who was behind the MoneyBags account. That raised red flags with the legal team at Twitter, which is always careful not to give up someone's identity unless absolutely required to by law. Twitter moved to quash the subpoena, suggesting that -- given all of the context -- it seemed most likely that the person behind this effort was Sheth, who was trying to uncover the identify of an anonymous critic on social media, and not for any legitimate copyright reason.

Bayside, for its part, insists that it has no connection to Sheth at all, though it does not identify on whose behalf it actually acts. The company only registered the copyright on those photos well after MoneyBags posted them, meaning there's no real value in suing (if the registration happens after the supposed infringement, then you're limited to "actual damages" which, here, would be nothing). The only real reason for issuing the subpoena is to find out who MoneyBags really is. Bayside also claims that it "advises and partners with creators, artists, 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."

That would have been more convincing if there was a long record of Bayside LLC registering similar copyrights, but, as we noted in our original article, there is not. It registered the photos in question... and those were the only registrations by Bayside until well after it sought the subpoena, at which point is suddenly registered some other unpublished photos.

We were dismayed at the time that the court did not grant Twitter's motion to quash. Instead, it said that to do a full "fair use" analysis, it needed to hear from MoneyBags directly, and ordered Twitter to notify the user that s/he should file a declaration with the court about the use of the photos. Twitter did, apparently, send the info to MoneyBags, but MoneyBags (very unfortunately) chose not to file with the court (it's unclear if anyone is even checking the MoneyBags account any more as it hasn't posted in a while).

Therefore, the court has said that since it can't conduct the proper fair use analysis, Twitter has to reveal who is behind the account.

Here, the court need not decide whether it is appropriate to use fair use as a proxy for the First Amendment analysis in a copyright infringement case involving an anonymous speaker, or whether to instead use the Highfields standard. This is because the speaker fails to meet either test on the current record.

On November 4, 2021, the court issued an order stating that “it lacks a well-developed record on which to base any ruling” on the issue of fair use. Nov. 4, 2021 Order 2; compare In re DMCA, 441 F. Supp. 3d at 884 (conducting fair use analysis where “[t]he record is well developed, and neither side contends that any evidence material to the fair use inquiry is missing,” noting “the salient evidence is not meaningfully disputed.”). The court determined that evidence of “the user’s purpose and intended meaning” in posting the tweets, which is relevant to the first and third factors of the fair use test, “is likely available only from the individual(s) who posted the tweets.” Moreover, it concluded, Twitter’s contentions about the purpose of the tweets was speculative. Nov. 4, 2021 Order 3. The court also noted that it lacked sufficient information to “balance ‘the magnitude of the harms that would be caused to the competing interests by a ruling in favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account]’” to the extent such a balancing was necessary, again finding that Twitter’s assertions on that point were speculative. Id. (quoting Art of Living Foundation v. Does, No. 10-cv-05022 LHK, 2011 WL 5444622, at *4 (N.D. Cal. Nov. 9, 2011) (quoting Highfields, 385 F. Supp. 2d at 980)).

Therefore, the court ordered Twitter to immediately serve a copy of the November 4, 2021 Order and the parties’ briefing on the email address associated with the @CallMeMoneyBags account. The court gave the account user(s) until December 10, 2021 to make a special and anonymous appearance to file evidence regarding fair use and/or the harms that may result if the court denies the motion to quash. Nov. 4, 2021 Order 3-4. Twitter served the user(s) on November 8, 2021. [Docket No. 20.] No appearance has been made on behalf of any individual associated with the @CallMeMoneyBags account.

As noted, “the burden of proving fair use is always on the putative infringer.” Lenz, 815 F.3d at 1153 (quotation omitted). On the current record and solely for the purpose of determining whether this subpoena should be quashed or enforced, the court is unable to conclude that @CallMeMoneyBags’s use of Bayside’s copyrighted photos constituted fair use because the anonymous speaker did not augment the record in order to meet their burden. The first factor looks to “whether and to what extent the new work is ‘transformative.’” Campbell, 510 U.S. at 579. Relatedly, the third factor asks whether “the quantity and value of the materials used . . . are reasonable in relation to the purpose of the copying.” Id. at 586 (quotation marks and citation omitted). The tweets at issue consist of statements combined with Bayside’s photos along with hashtags that do not convey an obvious meaning. Without evidence regarding the purpose and meaning of the tweets, the court cannot say that @CallMeMoneyBags’s use of the photos was “transformative” or reasonable in relation to @CallMeMoneyBag’s purpose in posting the tweets. See, e.g., In re DMCA, 441 F. Supp. 3d at 884-85 (concluding that use of Jehovah’s Witness’s copyrighted materials was “transformative” given undisputed evidence that speaker used materials “for criticism and commentary in a manner fundamentally at odds with [the organization’s] original purpose,” placed materials “on a forum expressly dedicated to criticism of [the organization] by former members, succeeded in generating a number of comments” from other critics of the organization, “and declared that his sole purpose was to criticize the organization and spark discussion about it”).

Based on that lack of appearance, the court says that the "putative infringer has not met its burden of establishing fair use for the purpose of quashing the subpoena." And thus, Twitter must reveal who is behind the account.

This seems not just wrong on multiple levels, but dangerous. It means that the very wealthy can abuse copyright law to out anonymous critics in lots of cases, especially if those anonymous critics can't pay an expensive lawyer to explain the very basics of fair use to a court. The burden shifting here seems really, really wrong. It's an unfortunate result, and shows yet another way that copyright is used as a censorship tool to stifle and suppress criticism.

It's still not clear who is behind Bayside or exactly why they're doing this, but rest assured that this kind of abuse of copyright to intimidate and suppress criticism will not go unnoticed by others wealthy enough to abuse the law in similar ways.

Filed Under: anonymity, brian sheth, callmemoneybags, copyright, dmca, fair use, free speech, subpoena
Companies: bayside advisory, twitter

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.

Filed Under: 512(h), anonymity, brenda diaz, brian sheth, callmemoneybags, copyright, criticism, dmca 512, first amendment, identity, social media, subpoenas
Companies: bayside advisory, twitter