Does Copyright Law Require Unmasking Anonymous Users When First Amendment Rights May Be Threatened by Disclosures?

A federal judge answered “No” to that question when he granted Twitter’s motion to quash a subpoena from strategic consulting firm Bayside seeking to identify the user behind @CallMeMoneyBags, an account dedicated to criticizing people. wealthy people in technology, finance and politics. In addition to finding that the user’s activity constitutes fair use, U.S. District Judge Vince Chhabria found that the user’s First Amendment rights would be violated if the person were identified, possibly in the form of retaliation. of a private equity billionaire targeted in his tweets.

“The mystery surrounding Bayside makes a difference,” reads the order released Tuesday. “If the Court were satisfied that Bayside had no connection to Brian Sheth, limited disclosure subject to a protective order might perhaps be appropriate. But the circumstances of this summons are suspicious.

In a series of six tweets accompanied by photos posted in October 2020, MoneyBags targeted Brian Sheth, founder of investment firm Vista Equity Partners. Each message implied that Sheth was having an affair.

Just days after the series of tweets, Bayside contacted Twitter, claiming it owned the copyright to the photos and demanding that they be removed. Twitter eventually removed the photos but was ordered to provide information identifying the user. Bayside sought the subpoena under the Digital Millennium Copyright Act, which allows copyright owners to obtain information identifying alleged infringers. According to Bayside, the DMCA requires internet service providers to comply with copyright owners’ subpoenas “notwithstanding any other provision of law,” including competing constitutional protections.

The case drew submissions from friends of the American Civil Liberties Union court and the Electronic Frontier Foundation, who argued that MoneyBags’ First Amendment rights outweigh Bayside’s interest in enforce its copyright. The Copyright Alliance backed Bayside, saying copyright holders must be able to identify anonymous users online to protect their work.

Overturning a previous judge’s ruling that allegedly forced Twitter to comply with the subpoena, U.S. District Judge Vince Chhabria concluded that Bayside’s interpretation of copyright law “raises serious constitutional concerns”. He rejected the company’s argument that it can’t consider user rights under the First Amendment.

“A recipient of a DMCA subpoena may therefore seek reversal on the basis that the subpoena would require disclosure of material protected by the First Amendment,” the order reads. “The fact that the DMCA allows a potential victim of copyright infringement to issue a subpoena to a service provider without first filing a lawsuit says nothing about whether courts should consider the interests of anonymous speakers in the same way as they would in other situations.”

The judge was suspicious of the nature of Bayside’s subpoena. According to court documents, the company was not created until the month the tweets about Sheth were posted on Twitter. Chhabria pointed to the fact that Bayside had never registered any copyright before the registration of the photos published by MoneyBags. He also noted that there is no publicly available information about Bayside’s directors, staff, physical location, training, or goals.

Lawyers representing the company filed a statement stating that “Bayside is not and has never been owned or controlled by Brian Sheth.” They noted that Sheth does not own “any copyright interest in the photographs”.

But Chhabria was not convinced. He said it would be troubling if Bayside was controlled by someone associated with Sheth or formed in response to the tweets. He also questioned why Bayside wanted to tag MoneyBags since the photographs accompanying his tweets had already been deleted.

“The Court is scratching its head,” reads the order. “It’s unclear what Bayside stands to gain by pursuing a copyright lawsuit against MoneyBags.”

Bayside managing partner Bert Kaufman said The Hollywood Reporter that, “Contrary to Twitter’s speculation, it was not created to carry this case, but rather existed before the tweets were published and the photos were stolen.” According to court documents, Bayside is a “communications and strategic consulting firm” that “licenses photographs for the purpose of commercial exploitation.”

Kaufman added, “This ruling supports the idea that a social media giant can also be judge and judged with impunity; where an anonymous Twitter account that bought bots and followers and stole copyrighted material is allowed to get away with not even showing up. Bayside is disappointed and weighs its options.

It’s not hard to imagine how the DMCA can be used by powerful people to identify anonymous users online who post content they don’t like. Aaron Mackey of the Electronic Frontier Foundation praised the decision for rejecting the idea that copyright law requires compliance with subpoenas even when constitutional protections are threatened.

“The danger of a ruling going the other way would have been to confirm that the copyright claims were special or different and that the usual First Amendment rules don’t apply,” Mackey said. “It would have emboldened companies and organizations that are happy to use copyright as a pretext to expose speakers or retaliate against them.”