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

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

Rightscorp Wins Anti-SLAPP Claim Against Guy Who Sued After Being Bullied With Robocalls

from the well-there-goes-that-idea dept

Back in November, we noted a class action lawsuit filed against Righstcorp in California, arguing that its process of shaking people down with robocalls violated various laws. In the first amended complaint, the plaintiff, John Blaha, focused on two issues: (1) that the robocalls violated the Telephone Consumer Protection Act and (2) that the use of DMCA 512(h) subpoenas were an "abuse of process." As we discussed, every few years, copyright trolls think they've rediscovered 512(h) and think they've found a magic key that lets them send subpoenas to ISPs, identifying people to shake down, without first filing a lawsuit. Of course, over a decade ago, a court soundly rejected that argument in a case the RIAA filed against Verizon, pointing out that if the RIAA wanted to find out names from Verizon it had to file a lawsuit first.

In response to this, Rightscorp (and Warner Bros., a Rightscorp client) tried to get the abuse of process claims tossed, by arguing they violated the First Amendment, and were subject to California's anti-SLAPP law. Now, as you know, I'm a huge supporter of anti-SLAPP laws, and California's is pretty good. But it seemed like a huge stretch to argue that the class action lawsuit was an attempt to stifle Rightscorp's free speech rights. Unfortunately, the court disagrees, and says that the abuse of process claim should get tossed thanks to the anti-SLAPP law.

The court points out that the subpoena is clearly protected under the anti-SLAPP statute, and thus, there's the question of whether the lawsuit is likely to prevail. It notes that, for an abuse of process case, the plaintiff needs to show an "ulterior motive" and that the actions were committed willfully "in the use of the process not proper in the regular conduct of the proceedings." Unfortunately, the court doesn't see either as being the case. It notes no "ulterior motive" by Rightscorp:

The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises no ulterior motive in Defendants’ use of the subpoenas. Whether or not § 512(h) subpoenas should validly be issued under the circumstances in which Defendants sought them, there is no allegation and no evidence that Defendants sought to do anything other than what their subpoena requests indicated – identify potential copyright infringers for the purpose of pursuing Defendants’ rights under the Copyright Act. Plaintiff’s extensive discussion of the elements of abuse of process... can be summarized as a view that seeking and obtaining some form of court order that should not have been issued is sufficient to satisfy both elements of the abuse of process tort. But, despite extensive rhetoric, Plaintiff provides no authority for this view and the most relevant authority is against it.... Again, the only “ulterior motive” identified by Plaintiffs is the motive disclosed on the face of the subpoena requests.... A disclosed motive is, by definition, not ulterior.

The issue here is basically this: those of us who follow copyright trolling know perfectly well that these subpoenas have an "ulterior motive," which is to shake down a large number of people for money. The problem, though, is that the court sees the specific aspects of the subpoena -- identifying a potential infringer -- as well within the proper bounds of going after them for copyright infringement. Whether or not the motive is an "ulterior" one seems to depend on if you view the overall process to be "filing a lawsuit against an alleged infringer" (as the court does) or "shaking down as many people as possible, with no intention of ever really going to court" (as people who follow copyright trolls know is the actual situation). And, while it's true that the first step in both processes is basically the same, this case is arguing that there's an ulterior motive in the eventual plan, but the court is basically saying that doesn't really matter at this point.

The court also claims that Rightscorp's subpoenas are protected by litigation privilege -- which is another concept that (like anti-SLAPP laws) tends to be a good thing for free speech -- which says that no tort can arise from statements made during litigation. But here's the problem with that: this isn't really litigation. Rightscorp isn't suing people. It's just using the court system to get contact info and then launching the robocalls. Still, the court argues that since the 512(h) subpoenas are communications via a court, litigation privilege covers it. While the complaint points to the later shakedown letters, the court (rightly) notes that those letters are not part of the 512(h) subpoena, and thus are not part of the "abuse of process" claim.

The entirety of Plaintiff’s claim is based on communications by Defendants to various courts in order to acquire subpoenas. Plaintiff’s opposition misses the point by focusing on the later communications made by Defendants to the now-identified potential infringers. But these communications are not the basis of the abuse of process claim; the complaint is clear that the abuse of process is alleged to have occurred when Defendants obtained (and served)4 the subpoenas knowing that the subpoenas were improper under the law.

The case is far from over, and I still have some problems with the way the court ruled here, but if I have to be wrong, at least I'm wrong in a way that says California's anti-SLAPP law is strong.

Filed Under: 512(h), anti-slapp, california, dmca, john blaha, subpoena
Companies: rightscorp