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!”