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(Reuters) – A company with “mysterious” origins and an “obscure” business model tried to use the Digital Millennium Copyright Act to force Twitter to disclose the identity of an anonymous user who killed the private-equity billionaire Brian Sheth criticized.
That strategy reversed quite spectacularly on Tuesday: A San Francisco federal judge concluded that the company’s refusal to disclose details about its own origins and motivations resulted in its bid to expose an anonymous Twitter Inc. user. wasted, @CallMeMoneyBagswho have allegedly infringed its copyright.
The entire case, which attracted passionate amicus curiae briefings on both sides, left US District Judge Vince Chhabria with doubts and questions about the motives of the copyright owner, Bayside Advisory LLC. Notably, Chhabria asked Sheth, the former chairman of Bayside’s Vista Equity Partners, about a possible relationship, despite opposition from Bayside’s lawyer that neither Sheth nor Moneybags’ other billionaires own or control the company.
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I’ll get what Chhabria called the mysterious circumstances of Bayside’s creation, but I want to note that in terms of copyright and First Amendment law, what’s important is that the judge took the company’s backstory into account at all. kept.
Bayside, represented by Glaser Weil Fink Howard Avchen and Shapiro, insisted throughout the case that most details of the company’s origins and operations are irrelevant to its right to ascertain the identity of the alleged infringer. The copyright of the images in Moneybags’ tweets is not in dispute, nor is there any doubt that Moneybags displayed the images, the company said. This is enough to establish Bayside’s prima facie case of copyright infringement — which, Bayside argued, would give the company the authority under the Digital Millennium Copyright Act to compel Twitter to disclose information about the alleged infringer. enough for.
But Chhabria concluded that Bayside’s details are an intrinsic part of a two-step analysis for a summons to expose an anonymous online speaker. First, the judge said, Bayside’s business model is a key factor in determining whether the company has indeed filed a prima facie case of infringement. After all, MoneyBag is allowed fair use of Bayside’s copyrighted photos. Fair use depends, in part, on whether the display of MoneyBag’s photographs affected the potential value of the works. Therefore, according to Chhabria, “Bayside should provide some explanation as to how its financial interests in copyright may be harmed by use such as the tweets at issue here.”
But even that is not enough, the judge said. Rejecting Bayside’s contention that the Digital Millennium Copyright Act already has First Amendment protections built in, Chhabria determined that he was granted the right to speak anonymously between Moneybags’ First Amendment rights and Bayside’s right to enforce copyright. There needs to be a balance between Chhabria said Bayside’s motive for uncovering Moneybag’s identity lies heavily in that balance.
The judge found that Bayside’s apparent conviction at both stages of the trial was fatal to the company. Because Bayside, a “communications and strategic advisory firm” did not offer more than a “vague” description of its business model, Chhabria said, it failed to deny Moneybag’s fair use of photographs. Furthermore, Chhabria said, even Bayside’s portrayal of his business was questionable, “given the suspicious circumstances” to uncover Moneybag’s identity.
According to Chhabria, Bayside was created in October 2020, the same month Moneybags posted six tweets containing obscene pictures of young women and commentary suggesting that Sheth was having an extramarital affair. Within days of the post, Bayside demanded Twitter remove the allegedly infringing tweets. (Twitter eventually removed the photos but retained the text of Moneybags’ tweets.)
Chhabria said the timing all seemed suspicious, as Bayside’s first copyright registration was for photos in tweets about Sheth, and neither did the judge know anything about Bayside’s principals, employees, or even its offices. Public information received.
“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 come to acquire these copyrights, and from whom?” Chhabria said he asked Bayside’s lawyer these questions at a hearing in May, but the lawyer “won’t (or can’t) expand on these vague claims.”
Chhabria called for the idea of a “explicit hearing in an attempt to ascertain the identity of Moneybags, which has nothing to do with copyright law, to find out whether Bayside and his lawyers are abusing the judicial process.” Both sides said that they do not want to be heard.
Bayside principal Burt Kaufman denied his company’s portrayal of the decision as “questionable” or vague in an emailed statement. “Contrary to Twitter speculation, [Bayside] The matter was not set up to bring it up,” the statement said. Kaufman said he started the company before MoneyBag tweeted about Seth, and that he represents a number of clients in public affairs and regulatory matters.
Kaufman described Bayside as “a small business that is trying to defend its legitimate copyright and that of its work with other small businesses and creators.” In Chhabria’s decision, he said, “Embrace Twitter’s distraction from core issues and risk the constitutional rights of artists, photographers, sole proprietors, small businesses and content creators to protect their copyrights and exercise their legal remedies.” put in.”
The judge’s opinion, Kaufman said, also contradicted a previous ruling by a magistrate judge, which forced Twitter to comply with Bayside’s subpoena. “Bayside is disappointed and is evaluating its options,” Kaufman’s statement said.
A Twitter spokesperson declined to comment. Twitter is represented by Perkins Coe.
Public Citizen’s Paul Allen Levy, who filed an amicus brief urging Chhabria to balance 1st Amendment equity, said that if Bayside is correct in his interpretation of the Digital Millennium Copyright Act, Levy called what he called “Levy”. , may be possible on appeal to dislike him. The bizarre facts of Bayside’s creation from legal issues.
He’s not convinced the company has much of a shot, though, based on the evidence record. “It’s a very unattractive appeal,” Levy said. “They may argue a legal issue but they look like schmucks.”
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