DMCA Subpoena To Unmask Twitter User Hits Fair Dealing And Constitutional Roadblock

Around October 2020, a Twitter user called ‘MrMoneyBags‘ started posting critical messages targeting billionaires.

Brian Sheth, the former chairman of Vista Equity Partners, an Austin, Texas-based private equity fund, has come under particular scrutiny. MrMoneyBags posted six tweets along with photos, with additional comments regarding Sheth’s wealth and alleged lifestyle.

“Brian Sheth has improved in his personal life. The only thing better than having a wife…is having a sexy young girlfriend,” MrMoneyBags said, referring to a photo of a woman in a bikini and high heels.

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Other tweets continued along the same lines, sometimes hinting at an extramarital affair between the woman and Sheth. Soon after, and under mysterious circumstances, copyright law entered the equation.

DMCA takedowns followed by a DMCA subpoena

On October 29, 2020, a business entity called Bayside Advisory LLC contacted Twitter stating that since they own the copyright to all six photos, they should be removed under the DMCA. Twitter then fulfilled its obligations under copyright law by removing them, but Bayside was just getting started.

After the DMCA takedowns were sent to Twitter, Bayside copyrighted the photos, went to court and obtained a DMCA subpoena compelling Twitter to provide sufficient information to identify MrMoneyBags, thereby removing their anonymity.

Twitter opposed the subpoena, arguing that the disclosure would infringe on First Amendment rights. The company also expressed concern that, via the DMCA subpoena, copyright law was being used to suppress criticism or rumors of extramarital affairs.

Additionally, Twitter said Bayside was unable to claim copyright infringement to obtain details of the alleged infringer (MrMoneyBags). Since the speech attached to the photographs constituted fair use, there were no infringers to identify.

Twitter’s motion to overturn the subpoena was met with opposition from Bayside. In response, Magistrate Judge Donna Ryu issued an order giving MrMoneyBags the ability to anonymously file evidence supporting Twitter and arguing that the photos were used on a fair use basis. The court received no response.

The judge noted that the lack of a “well-developed case” in the case meant that a finding of non-infringement based on fair use was not possible without evidence from MrMoneyBags. As a result, Bayside’s motion to compel was granted in late 2021, but Twitter opposed it and refused to hand over details to MrMoneyBags.

Twitter set to overturn magistrate’s order

In January 2022, the case was referred to District Judge Vince Chhabria, and within weeks the Electronic Frontier Foundation and the ACLU Foundation of Northern California filed a lawsuit. amicus brief arguing that the magistrate’s ruling “circumvented the First Amendment” when it focused solely on whether the MrMoneyBags tweets made fair use of the photos.

“Narrowing down the inquiry to focus exclusively on whether the copyright infringement occurred improperly allows the nature of the claim to drive the analysis, rather than the nature of the speech at issue,” notes the brief.

Noting that the tweets appeared to be “non-commercial, transformative, and critical commentary – classic fair dealing,” the brief argued that even if Bayside had a viable infringement claim, it couldn’t show that exposing the Twitter user was really necessary. to advance its interests, and that those interests outweighed any resulting harm.

Public Citizen then submitted a brief that supported Twitter and similar platforms to defend the First Amendment rights of their users. (pdf).

A brief submitted by the Copyright Alliance focused on mastering existing practices for resolving copyright infringement disputes. One party noted that MrMoneyBags could have taken “the simple step” of submitting a DMCA counter-notice if they thought their use of the photos was fair. (pdf).

Of course, that would have meant that MrMoneyBags’ real name and address would have been handed over to Bayside months earlier. That would have negated the need for this whole affair, which was clearly aimed at protecting his identity from the shadowy entity of Bayside and whoever was pulling the strings behind the scenes.

As it later turned out, Bayside’s dodgy nature played a major role in corrupting his own case.

Judge Chhabria sides with Twitter

In an order issued this week, Judge Chhabria first challenges Bayside’s claim that a provision of the DMCA subpoena process deprives the court of the power to consider the merits of a copyright claim (or First Amendment questions of privilege) when faced with a motion to compel or rescind a DMCA subpoena.

“Bayside’s reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker can exercise his right to anonymity after his identity has been revealed; then the damage will be done. Fortunately, the law does not compel (or permit) this outcome,” Judge Chhabria wrote.

A recipient of a DMCA subpoena may seek to have it reversed on the grounds that the subpoena would require disclosure of material protected by the First Amendment, its order states.

“Bayside then argues that to the extent MoneyBags has a First Amendment interest in this case, it is fully captured by the fair use copyright analysis, which allows the public to use works protected by copyright in certain circumstances without incurring liability”, continues the judge.

“But while it may be true that the fair use analysis fully encompasses free expression concerns in some cases, that is not true in all cases – and it is not true in a case like this one. Indeed, it is possible that a speaker’s interest in anonymity extends beyond the alleged infringement.

Responding to Bayside’s assertion that MrMoneyBags’ absence from the case dooms Twitter’s motion, the judge disagrees. His appearance would have been helpful but not absolutely necessary since Twitter’s interest in the dispute aligns with his – both have a stake in MrMoneyBags’ ability to speak out on the Twitter platform without doing facing reprisals.

Hiring an attorney to litigate a copyright claim can also be very expensive, so out of concern a speaker may choose to stop speaking rather than assert their right to do so anonymously.

“Indeed, there is evidence that is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify them of this dispute.”

Two-step test and fair use

For a litigant to unmask the identity of an anonymous Internet user in this type of case, the party requesting disclosure must first demonstrate a prima facie case on the merits of its underlying claim. The second step sees the court weigh the need for such discovery against the First Amendment interest at stake.

According to the judge, Bayside’s underlying claim — that of copyright infringement — fails when subjected to all four factors of fair use.

1) At the time the photos were used, the MrMoneyBags Twitter account had a small number of followers with just a handful of likes, retweets or comments, which excludes any commercial use. MrMoneyBags’ use of the photos alongside his own biting comments and criticism led to a transformative use that reflected his “apparent distaste for the one percenter lifestyle and moral compass,” the order notes.

2) As for the nature of the copyrighted works, the judge assessed some of them like the type of material that people might post on Facebook or Instagram. Others were more artistic, with things like lighting, positioning, and wardrobe giving the appearance of intentional selection.

Unfortunately, Bayside has provided no evidence on the photographs themselves, including where they were taken, by whom, the photographic subjects involved or whether there was actually an attempt by the photographer to influence the creative process. As a result, the judge finds this factor to be “largely inconclusive.”

3) On the amount of copyrighted content used, in the context of a photograph that “is not significantly divisible”, the judge finds the third factor “neutral”.

4) When considering the effect of the dealing on the potential market or value of the copyrighted work, the judge states that it is difficult to determine commercial harm when a use is transformative and non-commercial. Bayside claimed it licenses photos for commercial exploitation, but the judge didn’t buy that, especially since the company didn’t provide any evidence to show market harm.

Considering all of these factors, Bayside has failed to demonstrate a prima facie case of copyright infringement. Even if that were the case, the judge says the subpoena should still be overturned since the scales of action tip in favor of MrMoneyBags and his right to remain anonymous.

“Unmasking MoneyBags thereby risks exposing it to ‘economic or official retaliation’ from Sheth or his associates,” the judge wrote, before plunging down Bayside’s rabbit hole.

Bayside mystery ‘makes a difference’

According to the order, the Court is unsure that Bayside has no connection to Brian Sheth. Bayside was only formed the month the tweets were posted and the entity had never registered any copyrights prior to the registration of the six photographs.

The fact that there is no publicly available information about the directors, staff, physical location, formation or objectives of Bayside, and that the entity has refused to present additional evidence or information that could help the court, seems to have sounded the alarm.

Indeed, the judge concludes by giving Twitter (and by extension MrMoneyBags) a win and quashing the DMCA subpoena, with a barbed comment aimed at an obscure entity that values ​​anonymity, as long as it’s theirs.

“Bayside’s choice not to complete the case fairly easily balances MoneyBags’ interest in preserving its anonymity against Bayside’s alleged interest in protecting its apparent copyright,” Judge Chhabria wrote.

“On this case, even if Bayside had made a prima facie case of copyright infringement, the Court would quash the subpoena in the blink of an eye.”

Documents from the entire legal saga can be found here

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