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!"

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


Reader Comments

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  • identicon
    Bobvious, 10 Jan 2022 @ 1:59pm

    Remember people!!!!

    You can't scream COPYRIGHT in a burning theatre!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jan 2022 @ 2:05pm

      Re: Remember people!!!!

      The copyright cartels would, as the Cinema has shown a derivative work by not showing only part of the work.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Jan 2022 @ 3:55pm

        Re: Re: Remember people!!!!

        If a film is shown in a burning cinema, and nobody is watching it, is it still a copyright violation?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jan 2022 @ 3:54pm

      Re: Remember people!!!!

      i am an arsonist, and you know nothing of my work. it has been established in a fixed medium, even if parts of the work are a transitory and evolving process.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Jan 2022 @ 4:01pm

        Re: Re: Remember people!!!!

        I am sorry, sir.

        Because your application for an NEA endowment was not accompanied by evidence of corresponding Carbon Credit Offset, your endowment request for a performance of Burning Down A Cinema has been denied.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 10 Jan 2022 @ 2:13pm

    CR and the creater.

    Isnt there a built in CR for the person who took the picture?
    I would ask Who and where they got the Rights for the CR.
    Who they paid for the pictures and the ORIGINALS?
    And you Cant CR a COPY.

    Or Can I search the net for pictures and CR all of those not CR?
    FaceBook is covered with Pic's not CR then.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 10 Jan 2022 @ 2:14pm

      Re: CR and the creater.

      Wasnt there?
      A automatic CR for the first publish of a Picture?
      Still want to see his Originals.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 11 Jan 2022 @ 7:03am

      Re: CR and the creater.

      Unless Bayside can produce a bill of sale for the copyrights, a notarized release of copyrights or a work-for-hire agreement signed by the photographer granting ownership of the images to Diaz, those rights are retained by the photographer - who is clearly NOT Diaz.

      There are widely-believed myths that taking pictures of someone without that person’s consent is illegal or that the person shown in an image owns the copyrights to it - to the extent they can demand it be deleted from the photographer’s camera - but neither is true.

      Those myths are so prevalent though, that it wouldn’t surprise me if even some non-IP lawyers believed them. That’s the only way I could see a lawyer willing to file this case for Bayside, given how the bar for punishment for dishonesty is set much lower for lawyers than regular people.

      The registration of the copyrights after they were posted is pretty suspicious too - anyone can file for a copyright registration, even if they don’t own the copyrights, so long as they are the first to file. It’s not supposed to happen, yet we’ve seen things like it happen before, like with NASA probe video that gets DMCA’d by TV stations.

      reply to this | link to this | view in chronology ]

      • icon
        sumgai (profile), 11 Jan 2022 @ 3:51pm

        Re: Re: CR and the creater.

        [T]he bar for punishment for dishonesty is much lower for lawyers....

        Har har har, he said "punishment for dishonesty" and Prenda/Leibowitz in the same sentence. Ahahahahah...

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Jan 2022 @ 4:19pm

        Re: Re: CR and the creater.

        Body of local private investigator forund in river, film at 11.

        reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 10 Jan 2022 @ 2:23pm

    I wouldn’t be the least bit surprised if, should Twitter win this particular battle, Bayside Advisory shuts down and disappears to avoid answering questions about whether thin-skinned billionaire Brian Sheth actually does have something to do with the “company”.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Jan 2022 @ 3:25pm

      Re:

      At this point I'd say that would be more formality than anything, it may not be legally established that they're pulling the strings here but someone would have to be blindingly clueless not to have connected the dots available.

      reply to this | link to this | view in chronology ]

      • identicon
        Annonymouse, 10 Jan 2022 @ 5:54pm

        Re: Re:

        You mean someone like the judge in question?
        Then again contributing to a judges retirement fund does seem to affect their cognitive ability.

        reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 10 Jan 2022 @ 2:42pm

    some variation on the name Brenda Diaz.

    Debi Zandra, Zadra Biden, Diandra Zeb and and Edd Zabrina, the brain-dazed badder Nazi, who Ezra did ban, had bidden Zara a riband adze then lived up to his nasty nature and branded Zia.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jan 2022 @ 4:05pm

      Re: some variation on the name Brenda Diaz.

      Have you spoken with my Aunt, Anna Grammatical? I think she might have some choice words for you. And a triple word score, but you'd have to scrabble for that.

      reply to this | link to this | view in chronology ]

      • identicon
        Bobvious, 10 Jan 2022 @ 7:35pm

        Re: Re: some variation on the name Brenda Diaz.

        Is Anna Grammatical, the grammatical Nana, friends with Anglican Tammarra the anagram claimant, who owns the malignant maraca? Did you see Alan macing Marta? He reckons his good exam results are because he's better than Alana at cramming, and on 70's Night he can disco the hell out of everyone else because Mariana can't glam. Of course his graffiti is junk compared to that Lina McNamara tag, but he'll malign catamaran racing.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 10 Jan 2022 @ 4:30pm

      Re: some variation on the name Brenda Diaz.

      Do you smell toast?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jan 2022 @ 7:59pm

    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!"

    Sadly the truth is that the RIAA and their subsequent imitators have always worked under the impression that this is the case.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Jan 2022 @ 10:37pm

    blinks
    I thought she was a "professional" portrait photographer...
    I'd found her work once.

    Blah somedays its harder to keep the threads sorted in my head.

    reply to this | link to this | view in chronology ]


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