Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

A Free-Speech Case Tangles a Tech Billionaire, Twitter Troll

June 21, 2022, 9:00 AM

Almost from his first tweet back in October 2020, the Twitter user who called himself MrMoneybags left little doubt about his preferred targets—billionaires, most of whom made their fortunes in private equity.

But quickly, the anonymous poster seemed to fixate on one man: Brian Sheth, co-founder of Vista Equity Partners, the Austin-based investment firm renowned for bankrolling software and tech startups. Six tweets referencing Sheth—a 46-year-old who’s found the spotlight not only for his investment successes but also for his philanthropic support of environmental causes—included photos of young women in party dresses, at times with wink-and-a-nod captions.

“Brian Sheth has upgraded in his personal life,” one post stated. “The only thing better than having a wife...is having a hot young girlfriend.”

Almost as quickly, a consultant working for unnamed clients took Twitter Inc. to court in a bid to unmask Sheth’s mysterious troll. The petitioner, Bayside Advisory LLC, leaned on a 1998 law that lets copyright holders subpoena platforms such as Twitter to identify anonymous account holders who post their works without permission.

That case is now winding its way through the federal courts in California, gaining attention from digital-rights groups and copyright organizations who say it could rekindle debate about online anonymity, the First Amendment, and protections against rampant copyright infringement on the internet. A ruling may land in the coming days, but is likely to be challenged.

“These tools that provide these powers to copyright holders are often abused to chill speech,” said Aaron Mackey, senior counsel at the digital rights advocacy group Electronic Frontier Foundation. “We’ve seen it in this context being used against someone who’s engaging in flippant, sarcastic commentary online.”

‘If you ain’t cheatin’

MrMoneybags’ inaugural tweet back in 2020 was not about Sheth, but about his embattled Vista Equity co-founder, billionaire Robert Smith, who had been the target of a tax-evasion investigation by the Justice Department. That month, Smith reached a non-prosecution agreement that spared him jail time in return for a $139 million fine and cooperation in the probe of Bob Brockman, an even wealthier investor accused of fraud, laundering and tax charges.

Within hours of the account’s debut under the Twitter handle @CallMeMoneyBags, and with an image of his Monopoly character namesake, MrMoneybags began broadening his scope.

His fifth tweet quipped, “If you ain’t cheatin, you ain’t tryin” and linked to a news story about Smith’s deal with the Justice Department. It also named Sheth for the first time, in a hashtag. His sixth linked to a story reporting Sheth’s plan to depart Vista Equity, and included the comment: “Well, well, well.”

From there, Sheth, who is married with children, became a recurring target in MrMoneybags’ feed. On Oct. 19, the account began posting more tweets about the Vista co-founder, this time with photos of unidentified women, some in bikinis, others posing on what appeared to be a private jet.

“Brian Sheth is the best investor in private equity. This is how he spends his money,” one tweet read. “I would say this is a good investment!” Some of the posts included hashtags of Smith and Brockman.

The account then moved to serving up snarky comments about other bold-faced names, such as Leon Black, Jeffrey Epstein and President Joe Biden, but still returned to Sheth at times.

Neither Sheth nor anyone else named in the posts appeared to publicly acknowledge or react to them. But behind the scenes, someone was preparing a response.

The DMCA

Two weeks before MrMoneybags’ first tweet, Bayside Advisory had filed its incorporation papers in Delaware. The records named only the registration company that filed the forms.

On Oct. 29, Bayside asked Twitter to remove the photos of the women in the tweets about Sheth, contending copyright infringement and citing the Digital Millennium Copyright Act. The DMCA, enacted in 1998, was the last time Congress significantly revised copyright laws for the internet age, when illegally duplicating artistic works became as easy as a single click.

The law includes a “safe harbor” provision that shields online services from lawsuits over hosting user-generated content that violates copyrights.

To obtain that immunity, platforms like Twitter and Meta Platforms Inc.'s Facebook had to accept certain conditions: Establish systems to remove infringing content when asked by copyright holders, and be subject to subpoenas from the same holders seeking to identify the infringers.

“That’s the deal: Copyright holders give up certain rights against the service providers in exchange for being able to get this information,” said Stephen Doniger, of the law firm Doniger Burroughs.

Three days after sending the request, Bayside registered the copyrights to the six photos in MrMoneybags’ tweets, US Copyright Office records show. The images, taken in 2017 and 2020, came from a woman named Brenda Diaz, according to the records. They didn’t explain who she was, if she was in the photos or where they were taken.

A week after the request, Twitter did as Bayside asked and removed the photos. But other, similar tweets targeting Sheth were left untouched. One shows a woman posing in front of a 10-foot, flower-covered tower shaped like a capital B; the other image depicts three smiling women at the same spot, identified by what appear to be Instagram handles.

“You can run, but you can’t hide, Brian Sheth,” the tweet says. “Private Equity’s Billion Dollar Man is loving life.”

Then, in December 2020, Bayside subpoenaed the platform in a bid to identify MrMoneybags. Such subpoenas aren’t unusual. Twitter received 460 requests worldwide from non-government entities for account information between January and June 2021, complying with 46.7%, according to the latest data from the company’s transparency report. Citing the First Amendment, the platform also objected to 32 requests in the US to unmask anonymous users.

In January 2021, Twitter pushed back against Bayside, asking a California judge to block the subpoena because it would violate MrMoneybags’ free-speech rights. The request landed before Magistrate Judge Donna M. Ryu, sitting in Oakland.

The legal questions weren’t unique: How do you balance First Amendment interests and copyright infringement? Would the tweets fall under the fair use doctrine? That legal standard allows for unauthorized reproduction of copyrighted material in certain circumstances, like criticism and parody.

Several past rulings had addressed similar legal issues, but none have been uniformly adopted. In 2005, a California federal judge applied a two-prong test in Highfields Capital Management LP v. Doe, where a hedge fund sought to unmask anonymous users who posted allegedly defamatory content on a Yahoo message board.

Highfields first asks whether the proponent of unmasking an anonymous speaker has established a viable legal claim, such as copyright infringement or defamation. It then asks the court to weigh the interests of protecting anonymous speech against the claims of the petitioner seeking to identify the speaker.

The case before Ryu had its own quirks. In a way, she was being asked to referee a dispute between an anonymous Twitter user and the LLC who asked to unmask the troll but didn’t disclose why or who it was representing. Those unknowns made it more difficult to assess MrMoneybags’ purpose in posting the tweets and whether or how Bayside was harmed.

By that time, Bayside had registered to operate in California, with an office listed in Menlo Park. Those papers identified the company’s managing member as Bert Kaufman, a lawyer and former Commerce Department advisor during the Obama administration who in recent years has worked as a consultant and an executive at Zoox, a self-driving car company owned by Amazon.com Inc. But Twitter, in its filings, speculated that Sheth was the force behind Bayside and using copyright law to suppress criticism.

Kaufman declined to discuss the photos or say who enlisted him to seek to unmask the Twitter user, but said the legal principles at stake were indisputable.

“I have a great deal of respect and reverence for the First Amendment, but there is no First Amendment right to steal someone’s property and use it against another party,” he said. “That is theft.”

A spokesperson for Twitter declined to comment on the case. A representative for Sheth did not respond to requests for comment.

Ryu determined she needed more information to address whether the tweets were protected under fair use. On Nov. 4, she ordered Twitter to contact MrMoneybags and invite the user to make a special, anonymous appearance before the court to argue the case and present evidence.

But the Twitter account had fallen silent. Its creator failed to respond by the court’s Dec. 10 deadline.

Twitter had argued that the user didn’t need to appear because the photos were clearly “for the purpose of criticizing and satirizing Sheth,” but the judge wasn’t convinced.

“Twitter speculates,” she wrote. “The purpose and meaning of the tweets is not clear. They include hashtag references which are not obvious.”

On Dec. 29, she ordered Twitter to turn over MrMoneybags’ identity to Bayside.

Competing Interests

Twitter requested a new review, and the case landed with District Judge Vince Chhabria. Advocates on both sides of the issue took notice.

Paul Levy, an attorney at Public Citizen and the author of an amicus brief supporting neither side in the case, said he expects the dispute to rise to the circuit court. “And I want to be involved in it,” he said. “It presents the issue really well.”

Mackey, the EFF counsel who along with the ACLU of Northern California authored a brief supporting Twitter’s position, said Ryu incorrectly placed the burden on the anonymous user to appear before the court. He argued the burden should be flipped.

“When it’s a close question, the party who is seeking to know the identity has to show that they need that information,” Mackey said, noting that the infringement has stopped because the photos have been taken down. “They have to articulate why that need outweighs the harm to the speaker that will result.”

Without those protections, he said, copyright holders can abuse their powers to identify anonymous critics, retaliate, and chill speech. Twitter and EFF called for the court to adopt the Highfields test. Levy argued for a nearly identical legal balancing test that came from a similar case in New Jersey called Dendrite.

Groups advocating for stronger copyright protections for artists—such as the nonprofit Copyright Alliance and the American Photographic Artists—argued Ryu’s ruling was correct.

The First Amendment doesn’t protect copyright infringement, they contend, and platforms like Twitter need to follow the DMCA.

Doniger, representing the American Photographic Artists in an amicus brief supporting Bayside, said Twitter is failing to hold up its end of the DMCA bargain by refusing the subpoena. He said copyright holders need an inexpensive way to find infringers and take legal action against them.

“And now they’re being told, ‘You can’t get this information,’” Doniger said.

He contends the statute is clear: While an individual user can object to a DMCA subpoena, a service provider like Twitter can’t. The law states that service providers “shall expeditiously” surrender the information requested.

Cathay Smith, an intellectual property law professor at the University of Montana who’s written about “copyright weaponization,” said it can be challenging to distinguish the difference between when a copyright holder is seeking to protect their works and reputation and when they just want to suppress legitimate criticism.

“Because of that blur,” Smith said, “it’s really difficult to cleanly categorize some uses as ‘good’ and ‘bad.’”

The ‘Mysterious’ Bayside

At a virtual hearing in early May, Chhabria said he would probably block the subpoena based on the “pretty limited information” he’d been given about the petitioner. He was unconvinced by Bayside’s argument about the language of the DMCA and said he would likely adopt a legal test that balances First Amendment and copyright interests.

The judge also cited an unanswered question: Who is behind what he called the “mysterious” petitioner, Bayside?

In court documents, Bayside had stated that Sheth, Smith, and Brockman “have never owned or controlled” an interest in the company or the photo copyrights.

It described itself as a communications and strategic advisory firm that champions creative expression and “owns a catalog of photographs.” Besides the six posted by MrMoneybags, Bayside had registered copyrights for an additional 93 “unpublished” photos authored last July.

The judge said he had a “strong suspicion” that Sheth was connected to Bayside and considered investigating the company for abusing the judicial process.

Levy’s brief said the evidence on record is insufficient to properly balance the competing interests.

“It would have been useful” to have MrMoneybags explain why the account holder is “particularly interested in avoiding being identified,” he said.

What if the user was a person working in private equity or the tech industry, and could face serious retaliation if unmasked? What if Sheth is connected to Bayside and is using copyright law to suppress criticism? That could be the basis for copyright misuse, and a reason to block the subpoena.

Levy said a copyright lawsuit in this case would produce only a few hundred dollars in damages at most, so it was more likely that whoever enlisted Bayside was not doing it for the money but because they are offended by the tweets.

But the lack of evidence was one reason why Public Citizens didn’t stand up for MrMoneybags. Another possibility, Levy said, is that Bayside represents the women in the photos.

“What if it’s the women who object to the fact that they’re basically collateral damage in Moneybags wanting to say nasty things about Sheth?” he said.

Chhabria didn’t say when his ruling would land, but it’s likely not the final word. At the end of May’s hearing, Bayside attorney Lawrence Hadley said the petitioner was “prepared to go to the Ninth Circuit” if Chhabria rejects its petition.

MrMoneybags account has long been silent, but 141 of its tweets remain. One of the last ones, posted in October, was still pinned atop the account’s page late last week.

It cites an article about billionaires who dropped in Forbes’ rankings of the wealthiest, and quips: “Brian Sheth is the only guy in tech who lost money during this epic bull market run. The former billionaire went from $2.3 billion in 2020 to $900 million in 2021, according to @Forbes. Ouch.”

To contact the reporter on this story: Isaiah Poritz in Washington at iporitz@bloombergindustry.com

To contact the editors responsible for this story: John P. Martin at jmartin1@bloombergindustry.com; Keith Perine at kperine@bloombergindustry.com