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(Reuters) – A company with “mysterious” origins and a “vague” business model tried to use the Digital Millennium Copyright Act to force Twitter to reveal the identity of an anonymous user who criticized private equity billionaire Brian Sheth.
That strategy backfired in quite spectacular fashion on Tuesday, when a federal judge in San Francisco concluded that the company’s refusal to disclose details about its own origins and motivations was its attempt to expose the anonymous Twitter Inc user, doomed to fail. @CallMeMoneyBagswho allegedly infringed his copyright.
The entire case, which prompted passionate amicus briefings from both sides, left US District Judge Vince Chhabria full of doubts and questions about copyright owner Bayside Advisory LLC’s motives. In particular, Chhabria questioned Baysides’ possible ties to Sheth, former president of Vista Equity Partners, despite Bayside’s attorney having protested that neither Sheth nor MoneyBags’ other billionaire targets own or control the company.
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Coming to what Chhabria called the mysterious circumstances surrounding the formation of Bayside, I would note that for copyright and 1st amendment reasons, it is significant that the judge considered the company’s backstory at all.
Bayside, represented by Glaser Weil Fink Howard Avchen & Shapiro, insisted throughout the trial that most details of the company’s origins and operations were irrelevant to its right to discover the identity of the alleged infringer. The copyrights to the photos in MoneyBags’ tweets are undisputed, the company said, and there is no doubt that MoneyBags showed the photos. That’s enough to establish Bayside’s prima facie case of copyright infringement — which Bayside says is enough under the Digital Millennium Copyright Act to authorize the company to compel Twitter to disclose information about the alleged infringer.
However, Chhabria concluded that Bayside’s disclosures are an essential part of the two-step analysis for a subpoena to expose an anonymous online spokesperson. First, the judge said, Bayside’s business model was a critical factor in determining whether the company had in fact asserted a manifest instance of infringement. Finally, MoneyBags is permitted to use Bayside’s copyrighted photos fairly. Fair use depends in part on whether MoneyBags’ display of the photos affected the potential value of the works. According to Chhabria, “Bayside needs to explain how its financial interests in copyright could be harmed by a use like the tweets in question.”
But even that is not enough, said the judge. Chhabria dismissed Bayside’s argument that First Amendment protections were already built into the Digital Millennium Copyright Act and ruled that he had an obligation to speak between MoneyBags’ First Amendment right to remain anonymous and the law of Bayside to enforce its copyrights. Bayside’s motive for revealing the identity of MoneyBags weighs heavily in that balance, Chhabria said.
The judge found that Bayside’s blatant concealment was fatal to the company in both areas of the test. Because Bayside, a “communications and strategy consulting firm,” offered no more than a “vague” description of its business model, Chhabria said it could not disprove MoneyBags’ fair use of the photos. Furthermore, Chhabria said even Bayside’s account of his business was dubious “given the suspicious circumstances” of his attempt to uncover Moneybags’ identity.
According to Chhabria, Bayside was formed in October 2020, the same month that MoneyBags posted six tweets containing suggestive photos of young women and comments suggesting Sheth was having an extramarital affair. Within days of the posts, Bayside asked Twitter to remove the allegedly hurtful tweets. (Twitter eventually deleted the photos but left the text of MoneyBags’ tweets intact.)
Chhabria said the timing was all suspicious because Bayside’s first-ever copyright registrations were for the photos in the tweets about Sheth, and the judge couldn’t find any public information about Bayside’s directors, employees or even its offices.
“Is Bayside owned or controlled by anyone associated with Brian Sheth?” the judge wrote in Tuesday’s statement. “Was Bayside formed in response to these tweets? How did Bayside come to acquire these copyrights, and from whom?” Chhabria noted that he asked Bayside’s attorney these questions at a hearing in May, but the attorney “would not (or could not) elaborate on these vague allegations.”
Chhabria floated the idea of an evidentiary hearing “to investigate whether Bayside and his attorney are abusing the court process to determine the identity of MoneyBags for reasons unrelated to copyright.” Both sides said they did not want a hearing.
Bayside CEO Bert Kaufman, in an email statement, refuted his company’s portrayal as “suspicious” or shadowy in the decision. “Contrary to Twitter’s speculation [Bayside] was not set up to bring this matter up,” the statement said. Kaufman said he founded the company before the MoneyBags tweets about Sheth and that he represents a number of clients on public and regulatory affairs.
Kaufman described Bayside as “a small business trying to defend its valid copyrights and those of the other small businesses and creators it works with.” Chhabria’s ruling, he said, “welcomed Twitter’s distraction from core issues and jeopardized the constitutional rights of artists, photographers, sole traders, small businesses and content creators to protect their copyrights and exercise their remedies.”
The judge’s opinion, Kaufman added, also contradicts a magistrate’s previous decision to force Twitter to comply with Bayside’s subpoena. “Bayside is disappointed and is evaluating its options,” Kaufman said in a statement.
A Twitter spokesman declined to comment. Twitter is represented by Perkins Coie.
Public Citizen’s Paul Alan Levy, who filed an amicus briefing urging Chhabria to take stock of the 1st bizarre facts of Bayside’s formation from the legal issues.
However, he’s not convinced the company has much of a chance based on the evidence. “It’s a very unattractive appeal,” Levy said. “They can argue the point of law, but they look like idiots.”
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