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
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
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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