Court Orders Twitter Reveal Anonymous Tweeter Over Sketchy Copyright Claim, Because That Tweeter Won't Show Up In Court

Back in November we wrote about a very bizarre attempt to abuse copyright law to uncover who was behind a Twitter account, @CallMeMoneyBags. That account tweeted out various things mocking and shaming various extremely wealthy people, including billionaire Brian Sheth, a private equity bro. Some of the tweets in the fall of 2020 lightly mocked Sheth, including suggesting potential infidelity. The images themselves appeared to be social media-type photos of young women (or possibly just one young woman).

Sometime later, an organization called "Bayside Advisory LLC" showed up, claiming to hold the copyright on those images, and demanding Twitter take down the images -- which the company did. However, Bayside also tried to use the more controversial DMCA 512(h) subpoena process to try to uncover who was behind the MoneyBags account. That raised red flags with the legal team at Twitter, which is always careful not to give up someone's identity unless absolutely required to by law. Twitter moved to quash the subpoena, suggesting that -- given all of the context -- it seemed most likely that the person behind this effort was Sheth, who was trying to uncover the identify of an anonymous critic on social media, and not for any legitimate copyright reason.

Bayside, for its part, insists that it has no connection to Sheth at all, though it does not identify on whose behalf it actually acts. The company only registered the copyright on those photos well after MoneyBags posted them, meaning there's no real value in suing (if the registration happens after the supposed infringement, then you're limited to "actual damages" which, here, would be nothing). The only real reason for issuing the subpoena is to find out who MoneyBags really is. Bayside also claims that it "advises and partners with creators, artists, 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."

That would have been more convincing if there was a long record of Bayside LLC registering similar copyrights, but, as we noted in our original article, there is not. It registered the photos in question... and those were the only registrations by Bayside until well after it sought the subpoena, at which point is suddenly registered some other unpublished photos.

We were dismayed at the time that the court did not grant Twitter's motion to quash. Instead, it said that to do a full "fair use" analysis, it needed to hear from MoneyBags directly, and ordered Twitter to notify the user that s/he should file a declaration with the court about the use of the photos. Twitter did, apparently, send the info to MoneyBags, but MoneyBags (very unfortunately) chose not to file with the court (it's unclear if anyone is even checking the MoneyBags account any more as it hasn't posted in a while).

Therefore, the court has said that since it can't conduct the proper fair use analysis, Twitter has to reveal who is behind the account.

Here, the court need not decide whether it is appropriate to use fair use as a proxy for the First Amendment analysis in a copyright infringement case involving an anonymous speaker, or whether to instead use the Highfields standard. This is because the speaker fails to meet either test on the current record.

On November 4, 2021, the court issued an order stating that “it lacks a well-developed record on which to base any ruling” on the issue of fair use. Nov. 4, 2021 Order 2; compare In re DMCA, 441 F. Supp. 3d at 884 (conducting fair use analysis where “[t]he record is well developed, and neither side contends that any evidence material to the fair use inquiry is missing,” noting “the salient evidence is not meaningfully disputed.”). The court determined that evidence of “the user’s purpose and intended meaning” in posting the tweets, which is relevant to the first and third factors of the fair use test, “is likely available only from the individual(s) who posted the tweets.” Moreover, it concluded, Twitter’s contentions about the purpose of the tweets was speculative. Nov. 4, 2021 Order 3. The court also noted that it lacked sufficient information to “balance ‘the magnitude of the harms that would be caused to the competing interests by a ruling in favor of [Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account]’” to the extent such a balancing was necessary, again finding that Twitter’s assertions on that point were speculative. Id. (quoting Art of Living Foundation v. Does, No. 10-c