IP Law Daily, COPYRIGHT—N.D. Cal.: Source of satire tweet over billionaire’s ‘hot young girlfriend’ will remain anonymous, (Jun 22, 2022)

By Matthew Hersh, J.D.

The postings to Twitter were entitled to First Amendment protection and also qualified as fair use.

An anonymous critic who posted titillating photos of a prominent investor’s girlfriend to Twitter, ostensibly to illustrate that “life is good when you’re a 44-year-old private equity billionaire,” was entitled to remain anonymous under First Amendment principles, the federal district court in San Francisco has ruled. The court, reversing a magistrate judge’s ruling and quashing a subpoena to uncover the author of the anonymous posts, also found that the postings were protected as fair use because they transformed the original photos into biting commentary on the investor billionaire (In re DMCA § 512(H) Subpoena to Twitter, Inc., June 21, 2022, Chhabria, V).

The case arose when the anonymous owner of the Twitter hashtag @CallMeMoneyBags (“call him MoneyBags,” the court exhorted) posted six photographs, each depicting a woman or portions of a woman’s body. Three of the photographs showed the woman in various states of undress. Each photograph had an accompanying text suggesting that the woman was the new girlfriend of Brian Sheth, the cofounder of a prominent equity firm who ranked #359 on the 2020 Forbes 400. The photos were captioned with wordings like “The new Mrs. Brian Sheth at the top of Beverly Hills,” “Life is good when you are Brian Sheth,” “The only thing better than having a wife…is having a hot young girlfriend. “Life is good when you’re a 44-year old private equity billionaire,” and the like.

A company known Bayside Advisory LLC, registered the photos and issued a takedown notice under the Digital Millennium Copyright Act to Twitter. Twitter complied, taking down the photos. The copyright owner then had a DMCA subpoena issued to Twitter seeking to identify the owner of the @CallMeMoneyBags account. Twitter moved to quash the subpoena on grounds that the photos were covered by fair use. (The anonymous poster did not appear.) A magistrate judge declined to quash the subpoena. Twitter challenged that ruling, leading to this opinion.

First Amendment. The court, reviewing the matter de novo because the parties had not consented to magistrate jurisdiction, agreed that the anonymity of the poster was protected by free speech principles.

The court began by holding that First Amendment principles indeed applied to the case. The copyright owner argued that the question was exclusively controlled by the Digital Millennium Copyright Act, or DMCA, which allows copyright holders to request a subpoena directly. But that reading of the DMCA, the court held, “raises serious constitutional concerns” because it would essentially deprive the poster from raising First Amendment concerns until their identity had been unmasked. Nor could free speech concerns be taken into account merely by applying fair use principles, the court held. To be sure, fair use extends to the limits of the First Amendment in most cases. But here, the question was not whether the anonymous poster was entitled to display the photos at issue, but whether they were entitled to remain anonymous while doing so. Finally, the court noted, it did not matter that the poster themself did not appear in the case, as their interests were nonetheless at stake.

Applying these free speech principles, the court held, led easily to the conclusion that the poster should remain anonymous. The question here involved the balance of equities. On the one hand, the poster had a considerable interest in remaining anonymous, as they risked “economic or official retaliation” by the billionaire or his associates. To be sure, the court noted, the copyright owner had an interest in knowing who was allegedly infringing its copyrights. But here there was a hitch: the court strongly suspected that the copyright owner was in fact connected to the billionaire himself. After all, the court noted, the copyright owner appeared to have only recently been formed and there was no indication that it was anything but a shell corporation. Under this circumstance, the court noted, it was hard to give the copyright owner’s interests the weight to which they might otherwise be entitled.

Fair use. The court also held that fair use principles, in addition to First Amendment principles, supported the motion to quash. Importantly, the court noted, the use of the photos was noncommercial and also served a transformative purpose. Indeed, “by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters.” That weighed heavily in favor of fair use. (Notably, in applying this test the court adopted the relatively expansive reading of the fair use doctrine that has developed in the Ninth Circuit—a reading that was squarely placed at issue by the Second Circuit in its recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case that will be heard by Supreme Court in October.) The other fair use factors did not tip the balance, the court noted.

The case is No. 4:20-mc-80214-VC.

Attorneys: Lawrence M. Hadley (Glaser Weil Fink Howard Avchen & Shapiro LLP) for Bayside Advisory LLC. Julie Erin Schwartz (Perkins Coie LLP) for Twitter, Inc.

Companies: Bayside Advisory LLC; Twitter, Inc.

Cases: Copyright TechnologyInternet CaliforniaNews