from the wtf-is-going-on-here? dept
Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm’s other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and “abandon” $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but “Smith prevailed” and so Sheth left. Nothing in that article makes Sheth look particularly bad.
However… an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn’t particularly bad. One of them just says “Brian Sheth is the King of Private Equity” with some hashtags:
Some of the tweets could be read obliquely to suggest infidelity:
You’ll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that’s the next stage of this mystery. An entity called “Bayside Advisory LLC,” which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.
Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:
None of the Tweets mention Bayside…. Twitterâ€™s counsel has attempted to learn the
connection between Bayside and Sheth or the images at issue but has been unsuccessful….
Bayside does not appear to be registered to conduct business in California, and public searches of
Bayside reveal only an Ohio real estate holdings company with no apparent connection to Sheth
and no specialization in creating or acquiring copyrights of candid photographs.
There’s been a fair bit of back and forth, but to summarize, Twitter argues (correctly) that the 1st Amendment protects anonymity. “Bayside” (whoever that is) argues back (misleadingly) that copyright infringement is not protected by the 1st Amendment. Twitter argues (correctly) that fair use is not infringement, and Bayside argues that it’s not fair use. Twitter then argues again that (1) it is fair use, and (2) even if it’s not fair use, Bayside doesn’t meet the very high bar to expose an anonymous social media user.
Throughout all of this Bayside keeps insisting that it has no connection to Sheth at all and is merely a concerned copyright holder trying to police infringement. This seems exceedingly difficult to believe. However, the company filed a disclosure insisting that there were no other parties of interest in this case, and says that Twitter is wrong in implying that Sheth or someone connected to him are trying to expose MoneyBags:
Twitter falsely claims that Bayside is attempting to unmask a Twitter user
(â€œMoneyBagsâ€) for commenting on a newsworthy billionaire, thereby chilling MoneyBagsâ€™ First
Amendment speech. (Dkt. 13 at 5). Bayside is not. As was clear in its opposition to the motion to
quash (Dkt. 9), Bayside seeks the identity of a copyright infringer pursuant to the DMCA. The
First Amendment does not afford protection for copyright infringement, nor are copyright
infringer identities protected from disclosure by the First Amendment. Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); Arista Records, LLC v. Doe 3, 604
F.3d 110, 118 (2d Cir. 2010). Bayside has never requested MoneyBagsâ€™ tweets be removed. The
commentary in those tweets remained after Baysideâ€™s DMCA notice, and their textual comment
is of no concern to Bayside. What is of great concern to Bayside is the unauthorized use of
several of its copyrighted Photographs simply as an illustrative aid to those tweets, which does
not constitute fair use.
Elsewhere, Bayside is even more emphatic that it has nothing to do with Sheth:
â€œthe photos are exclusively and solely owned and controlled by our client Bayside Advisory LLC, the photos are registered
with the United States Copyright Office reflecting that Bayside is the sole owner, Mr. Sheth
never had any ownership or control interest in the photos and that Mr. Sheth does not own
or control any interest in Bayside.â€
For what it’s worth, it does appear that Bayside Advisory LLC, using a US Postal Service postal box based in Menlo Park, California, did in fact file a copyright registration for six photos after MoneyBags posted the tweets. The registration claims that two of the photos (registered as a “group”) were “published” in 2017 and the four others (also registered together as a group) were “published” in July of 2020. In those registrations, Bayside names Brenda Diaz as the photographer of all six photos. Notably, Bayside insists that protecting copyright is part of what it does:
Contrary to Twitterâ€™s baseless conjecture, Bayside is a
communications and strategic advisory firm that, among other things, advises and partners with
creators, artists, and 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. What Twitter is attempting to do with its motion to quash is diminish
the rights of copyright holders by forcing them to navigate the court system and fight diligently,
and at great cost and expense, to get basic information about those who infringe their copyrights.
That would be a hell of a lot more compelling if… the two registrations at issue here weren’t the only two registrations for published works that Bayside Advisory has. Earlier this summer (many, many months later) Bayside Advisory did register two more groups of unpublished photographs, but the idea that these photos are “only a small part of its catalog” is, at the very least, not clearly seen in its copyright registration practices.
Now, many months later, the judge has finally issued an order… which only punts the matter for the time being. Basically, the judge says it doesn’t have enough info about @CallMeMoneyBags’ use of the photos to determine whether or not they are protected by fair use, because MoneyBags is not a party here and hasn’t filed anything on his (or her) behalf. So the court says that it has to hear from MoneyBags in order to get the full record and make a fair use determination, and whether or not MoneyBags’ anonymity should also be protected:
To the extent the court must reach the issue of whether @CallMeMoneyBagsâ€™s use of the
photos constitutes fair use, it lacks a well-developed record on which to base any ruling. … In this case, Twitter states that â€œ[i]t appears the anonymous Twitter user here posted those candid photographs
for the purpose of criticizing or satirizing Sheth.â€ Mot. to Quash 12. Twitter speculates. The
purpose and meaning of the tweets is not clear. They include hashtag references which are not
obvious. Evidence regarding the userâ€™s purpose and intended meaning is likely available only
from the individual(s) who posted the tweets. … The facts relevant to the first factor may also impact the third, which
examines â€œthe amount and substantiality of the portion used in relation to the copyrighted work as
a whole.â€… As the Supreme Court has
explained, when examining the third factor, â€œthe enquiry will harken back to the first of the
statutory factorsâ€ because â€œthe extent of permissible copying varies with the purpose and character
of the use.â€
Additionally, to the extent the court determines it is necessary and appropriate to â€œbalance
â€˜the magnitude of the harms that would be caused to the competing interest by a ruling in favor of
[Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account],â€™â€
the court lacks sufficient information to do so…. As noted, Twitter contends that
unmasking @CallMeMoneyBags â€œmay invite social ostracism, expose them to harassment, or
prevent future employment opportunities,â€ but this too is speculative.
Accordingly, the court shall give the user(s) of the @CallMeMoneyBags account an
opportunity to provide information supporting the foregoing inquiries, including evidence
regarding any claim of fair use of the photos and the harms that could result if the court rules in
favor of Bayside on the motions to quash and to compel. Twitter shall immediately serve a copy
of this order along with the complete briefing on Twitterâ€™s motion to quash and Baysideâ€™s motion
to compel on the email address associated with the @CallMeMoneyBags account, and file a
declaration attesting to the same by November 10, 2021. By no later than December 10, 2021, the
user(s) of the @CallMeMoneyBags account may specially appear and file evidence regarding fair
use and/or the harms that may result if the court denies the motion to quash and grants the motion
to compel. The user(s) may appear anonymously for the purpose of submitting such evidence.
The court will take the matter under submission after December 10, 2021.
Twitter has since told the court that it has sent this ruling to @CallMeMoneyBags, and one hopes that MoneyBags can find himself (or herself) a decent lawyer who understands both fair use and anonymity…
And, of course, there’s a lot that’s perplexing here. The most obvious candidate for wanting to identify MoneyBags would be Sheth, but Bayside is emphatic (in its court filings) that it’s not Sheth, but it’s not at all clear who is actually behind Bayside or what Bayside actually does. But if it’s not Sheth, then who would be so insistent on finding out who is behind the account, and spending what appears to be significant amount on a lawyer who used to run legal affairs for Universal Music Publishing Group? That’s not how most people react to random snapshots being placed on Twitter. It’s possible that it’s somehow connected to the photographer, Diaz, but, if so, why did she hand over just those six images to Bayside to register and fight this fight? It’s all… very perplexing.
Either way, kudos to Twitter for (1) fighting for the right to post anonymously, to criticize people while doing so, and (2) fighting for fair use.
Filed Under: 512h, anonymity, brenda diaz, brian sheth, callmemoneybags, copyright, criticism, dmca 512, first amendment, identity, social media, subpoenas
Companies: bayside advisory, twitter