Fair Use and the Constitution protecting Free Speech On Twitter

Teddy Sagi
Reading time: 8 minutes

A Twitter user who posted copyrighted photos to criticize a private-equity billionaire will keep their anonymity. Twitter took down the allegedly illegal content, but when a mysterious company tried to use the DMCA to find out who the user was, Twitter went to Court on their behalf. Fair use and freedom of speech are in danger because of the Court’s decision.

Around October 2020, a Twitter user named “MrMoneyBags” started criticizing billionaires in posts.

Special attention was paid to Brian Sheth, former President of Vista Equity Partners, a private equity fund based in Austin, Texas. MrMoneyBags sent out six tweets with photos and comments about Sheth’s money and how he supposedly lives.

“Brian Sheth has upgraded in his personal life. The only thing better than having a wife … is having a hot young girlfriend,” said MrMoneyBags. He was pointing toward a picture of a woman in a bikini and high heels.

Other tweets kept going in the same direction. Hinting that the woman and Sheth were having an affair outside their marriage. Soon after that, copyright law came into the picture for unknown reasons.

After DMCA takedowns, DMCA summons happened.

On October 29, 2020, a business called Bayside Advisory LLC contacted Twitter. In that call, they announced that it had the copyright of the six photos; they should be taken down under the DMCA. Later, Twitter did what it had to do under copyright law and removed them, but Bayside had other plans.

After sending DMCA notices to Twitter, Bayside registered copyrights on the photos. Then they went to Court and got a DMCA summons ordering Twitter to hand over enough information to identify MrMoneyBags, taking away their anonymity.

Twitter didn’t like the subpoena because it would hurt the First Amendment rights of its users. The company is aware of the powerful and wealthy people using DMCA subpoena to avoid criticism.

Also, Twitter said Bayside had no right to claim copyright violations to find out who was allegedly breaking the law (MrMoneyBags). Since the speech attached to the photos was of fair use, there was no one to find who had broken the rule.

Bayside disagreed with Twitter’s plan to get rid of the subpoena. In response, Magistrate Judge Donna Ryu issued an order. This gave MrMoneyBags the chance to back Twitter and argue that the use of photos was fair. The Court didn’t hear anything.

The Judge pointed out that the case didn’t have a “well-developed record,” So he couldn’t rule that MrMoneyBags didn’t break the law based on fair use without evidence from him. So, Bayside’s motion to compel was successful in late 2021, but Twitter didn’t like it and didn’t give MrMoneyBags’ information.

Twitter Moves to Overturn Magistrate’s Order

In January 2022, District Judge Vince Chhabria took responsibility for the case. Within a few weeks, the Electronic Frontier Foundation and the ACLU Foundation of Northern California issued a formal brief. It stated that the magistrate’s ruling “sidestepped the First Amendment” by focusing only on whether MrMoneyBags’ tweets made fair use of the photos.

“Narrowing the inquiry to focus exclusively on whether copyright infringement occurred incorrectly allows the nature of the claim to drive the analysis, rather than the nature of the speech at issue,” the brief noted.

Noting that the tweets seemed to be “noncommercial, transformative, critical commentary—classic fair uses,” the brief argued that even if Bayside had a valid claim of violation, it could not show that revealing the Twitter user’s identity was truly necessary to advance its interests and that those interests were more important than the harm that would result.

Later, Public Citizen sent over a brief that said Twitter and other sites like it should protect the First Amendment rights of their users (pdf).

The main point of the Copyright Alliance’s brief was to keep the way disputes over copyright infringement are handled as tight as possible. One part said that MrMoneyBags could have taken “the simple step” of sending a DMCA counter-notice if they thought their use of the photos was fair (pdf).

Of course, that would have meant that Bayside would have known Mr. MoneyBags’ real name and address months earlier. It would have made this case pointless since the whole point was to keep his identity hidden from the mysterious Bayside organization. Also, from whoever was pulling the strings behind the scenes.

As it turned out, Bayside’s shady nature significantly made its case look bad.

Judge Chhabria Sides With Twitter

In an order released this week, Judge Chhabria first disagrees with Bayside’s claim. The claim was that a part of the DMCA subpoena process takes away the Court’s power to look at the merits of a copyright claim or issues of First Amendment privilege when there is a motion to compel or nullify a DMCA subpoena.

“Bayside’s reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker could assert their right to anonymity after exposing their identity; at that point, it might be already too far. Fortunately, the statute does not compel (or permit) this result,” Judge Chhabria writes.

His order makes it clear that a person who gets a DMCA summons can move to have it thrown out if it requires them to give up information that the First Amendment protects.

“Bayside next argues that to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the Judge continues.

“But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases — and it is not true in a case like this. That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”

Hiring a lawyer to fight a copyright claim can also be very expensive. So a speaker may decide to stop talking rather than fight for their right to do so anonymously.

“Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.”

Two-Step Test and Fair Use

In this case, a complainant needs to find out who an anonymous internet user is. The party asking for the information must first show its good point. Along with the merits of its underlying claim. In the second step, the Court weighs the need for this kind of discovery. Also, the interest is at stake under the First Amendment.

The Judge says that Bayside’s primary claim of copyright infringement fails when they considered four factors.

1) During the post, MrMoneyBags’ Twitter account only had a few likes, retweets, or comments, making commercial use impossible. The order says that MrMoneyBags’ use of the photos with his own biting comments and criticism. They turned them into something new that showed his “apparent dislike.

2) The Judge said that some of the copyrighted works were like things people might post on Facebook or Instagram. Some were more artistic, with lighting, positioning, and clothing that made it look like their selection was on purpose.

Unfortunately, Bayside failed to give any information about the photos themselves. Information like where the place of the image was, who took them, who they were from, or if the photographer tried to influence the creative process. So, the Judge decides that this factor is “largely inconclusive.”

3) The third factor is “neutral” when it comes to the amount of copyrighted content used in a photograph. It “cannot be meaningfully divided.”

4)The Judge looks at how the use affects the possible market for or value of the copyrighted work. He or she says it’s hard to figure out how much the market is hurt when the use is noncommercial and changes the work. Bayside said it licenses photos for commercial use. Still, the Judge didn’t believe them, especially since the company failed to prove that posting the images hurt the market.

Taking all of these things into account, Bayside has not shown that they have violated someone’s copyright. Even if it had, the Judge says that the subpoena won’t work. The main reason is the balance of rights favors MrMoneyBags and his right to remain anonymous.

The Bayside Mystery ‘Makes a Difference’

The order says that the Court can’t be sure that Bayside has nothing to do with Brian Sheth. Bayside didn’t start until the same month that controversy regarding photos happened. The organization had never registered any copyrights before the six images.

There are no public information about Bayside’s owners, employees, physical location, formation, or goals. The organization refused to give the Court any more evidence. Even information that might help seems to have set off alarm bells.

The Judge gives Twitter (and, by extension, MrMoneyBags) a win by throwing out the DMCA subpoena. They also made a sarcastic remark about a mysterious group that likes anonymity as long as it favors them.

“Bayside’s choice not to supplement the record makes it quite easy to balance MoneyBags’s interest in preserving his anonymity against Bayside’s alleged interest in protecting its apparent copyrights,” Judge Chhabria writes.

“On this record, even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.”

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