‘Mystery’ company is sued to expose the billionaire’s critic on Twitter. Did not went well.

(Reuters) – A company with “mysterious” origins and a “vague” business model has tried to use the Digital Millennium Copyright Act to force Twitter to disclose the identity of an anonymous user who criticized private equity billionaire Brian Sheth. .

That strategy backfired quite spectacularly on Tuesday: A federal judge in San Francisco concluded that the company’s refusal to disclose details about its own origins and motivations doomed its attempt to expose the anonymous Twitter user Inc. @CallMeMoneyBagsthat allegedly infringed their copyright.

The entire case, which drew an impassioned amicus briefing from both sides, left US District Judge Vince Chhabria full of doubts and questions about the motives of the copyright owner, Bayside Advisory LLC. In particular, Chhabria questioned Bayside’s possible ties to former Vista Equity Partners chairman Sheth, despite protests from Bayside’s attorney that neither Sheth nor the other Billionaire MoneyBags targets own or control the company.

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I’ll get to what Chhabria called the mysterious circumstances of Bayside’s creation, but I want to note that for the sake of copyright and 1st Amendment law, what’s significant is that the judge took into account the company’s backstory.

Bayside, represented by Glaser Weil Fink Howard Avchen & Shapiro, has insisted throughout the case that most details of the company’s origin and operation are irrelevant to its right to discover the identity of the alleged infringer. Its copyright to the photos in MoneyBags’ tweets is not in dispute, the company said, nor is there any doubt that MoneyBags displayed the photos. This is enough to establish Bayside’s prima facie case of copyright infringement – which, Bayside argued, is in turn sufficient under the Digital Millennium Copyright Act to authorize the company to compel Twitter to disclose information about the alleged offender.

But Chhabria concluded that Bayside’s details are an intrinsic part of the two-step analysis for a subpoena to unmask an anonymous speaker online. First, the judge said, Bayside’s business model is a critical factor in determining whether the company has actually claimed a violation case. After all, MoneyBags is allowed to make fair use of Bayside’s copyrighted photographs. Fair use depends, in part, on whether MoneyBags’ display of the photos has impacted the potential value of the works. So, according to Chhabria, “Bayside should offer some explanation as to how its financial interests in the copyright could be harmed by a use like the tweets in question here.”

But even that is not enough, the judge said. Rejecting Bayside’s argument that 1st Amendment protections are already built into the Digital Millennium Copyright Act, Chhabria ruled that he is obligated to balance the actions between MoneyBags’ 1st Amendment right to speak anonymously and Bayside’s right to enforce your copyright. Bayside’s motive for exposing MoneyBags’ identity weighs heavily on that balance, Chhabria said.

The judge ruled that Bayside’s apparent obfuscation was fatal to the company at both stages of the test. Because Bayside, a “strategic consulting and communications firm,” offered no more than a “vague” description of its business model, Chhabria said, it failed to refute MoneyBags’ fair use of the photos. Furthermore, Chhabria said, even Bayside’s description of her business was dubious, “given the suspicious circumstances” of her effort to expose Moneybags’ identity.

According to Chhabria, Bayside was created in October 2020, the same month that MoneyBags posted six tweets with suggestive photos of young women and comments suggesting Sheth was having an affair. A few days after the posts, Bayside demanded that Twitter take down the allegedly infringing tweets. (Twitter eventually deleted the photos, but left the text of MoneyBags’ tweets intact.)

Chhabria said the timing looked suspicious, as Bayside’s first copyright filings were for the photos in the tweets about Sheth, nor was the judge able to find any public information about the directors, employees or even their offices.

“Is Bayside owned or controlled by someone associated with Brian Sheth?” the judge wrote in Tuesday’s opinion. “Was Bayside formed in response to these tweets? How did Bayside acquire these copyrights and from whom?” Chhabria noted that he asked these questions of Bayside’s attorney at a hearing in May, but the attorney “wasn’t (or couldn’t) expand on these vague claims.”

Chhabria pitched the idea of ​​an evidentiary hearing “to explore whether Bayside and his attorney are abusing the court case in an effort to discover MoneyBags’ identity for reasons that have nothing to do with copyright law.” Both sides said they did not want a hearing.

Bayside managing director Bert Kaufman refuted the description of his company’s decision as “suspicious” or bleak in an emailed statement. “Contrary to Twitter speculation, [Bayside] was not created to address this issue,” the statement said. Kaufman said he started the company before MoneyBags’ tweets about Sheth and that he represents a range of clients in public affairs and regulatory matters.

Kaufman described Bayside as “a small company trying to claim its valid copyright and those of other small companies and creators it works with”. Chhabria’s decision, he said, “embraced Twitter’s distraction from the core issues and jeopardized the constitutional rights of artists, photographers, individual owners, small businesses and content creators to protect their copyright and exercise their legal remedies.”

The judge’s opinion, Kaufman added, also contradicts a magistrate’s earlier ruling that compelled Twitter to comply with Bayside’s subpoena. “Bayside is disappointed and is evaluating its options,” Kaufman said in the statement.

A Twitter spokesperson declined to comment. Twitter is represented by Perkins Coie.

Paul Alan Levy of Public Citizen, who presented an amicus brief urging Chhabria to balance the 1st Amendment’s actions, said that if Bayside is right in his interpretation of the Digital Millennium Copyright Act, it may be possible, on appeal, to untangle what Levy called the “bizarre” facts of Bayside’s creation from legal issues.

He’s not convinced the company has much of a chance, however, based on the evidentiary record. “It’s a very unattractive appeal,” Levy said. “They can discuss the legal issue, but they look like idiots.”

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