Court Orders Twitter Reveal Anonymous Tweeter Over Sketchy Copyright Claim, Because That Tweeter Won't Show Up In Court
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only registrations by Bayside until well after it sought the subpoena, at which point is suddenly registered some other unpublished photos.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 theFirst Amendment analysis in a copyright infringement case involving an anonymous speaker, orwhether to instead use the Highfields standard. This is because the speaker fails to meet either teston the current record.
On November 4, 2021, the court issued an order stating that it lacks a well-developedrecord on which to base any ruling" on the issue of fair use. Nov. 4, 2021 Order 2; compare In reDMCA, 441 F. Supp. 3d at 884 (conducting fair use analysis where [t]he record is welldeveloped, 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 evidenceof the user's purpose and intended meaning" in posting the tweets, which is relevant to the firstand third factors of the fair use test, is likely available only from the individual(s) who posted thetweets." Moreover, it concluded, Twitter's contentions about the purpose of the tweets wasspeculative. Nov. 4, 2021 Order 3. The court also noted that it lacked sufficient information tobalance the magnitude of the harms that would be caused to the competing interests by a rulingin favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBagsaccount]'" to the extent such a balancing was necessary, again finding that Twitter's assertions onthat point were speculative. Id. (quoting Art of Living Foundation v. Does, No. 10-cv-05022LHK, 2011 WL 5444622, at *4 (N.D. Cal. Nov. 9, 2011) (quoting Highfields, 385 F. Supp. 2d at980)).
Therefore, the court ordered Twitter to immediately serve a copy of the November 4, 2021Order and the parties' briefing on the email address associated with the @CallMeMoneyBagsaccount. The court gave the account user(s) until December 10, 2021 to make a special andanonymous appearance to file evidence regarding fair use and/or the harms that may result if thecourt denies the motion to quash. Nov. 4, 2021 Order 3-4. Twitter served the user(s) onNovember 8, 2021. [Docket No. 20.] No appearance has been made on behalf of any individualassociated with the @CallMeMoneyBags account.
As noted, the burden of proving fair use is always on the putative infringer." Lenz, 815F.3d at 1153 (quotation omitted). On the current record and solely for the purpose of determiningwhether 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 theanonymous speaker did not augment the record in order to meet their burden. The first factorlooks to whether and to what extent the new work is transformative.'" Campbell, 510 U.S. at579. Relatedly, the third factor asks whether the quantity and value of the materials used . . . arereasonable in relation to the purpose of the copying." Id. at 586 (quotation marks and citationomitted). The tweets at issue consist of statements combined with Bayside's photos along withhashtags that do not convey an obvious meaning. Without evidence regarding the purpose andmeaning of the tweets, the court cannot say that @CallMeMoneyBags's use of the photos wastransformative" 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'scopyrighted materials was transformative" given undisputed evidence that speaker used materialsfor 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 [theorganization] by former members, succeeded in generating a number of comments" from othercritics of the organization, and declared that his sole purpose was to criticize the organization andspark discussion about it").
Based on that lack of appearance, the court says that the "putative infringer has not met its burden ofestablishing 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.