From Paul Alan Levy (Public Citizen) (bullets and some paragraph breaks added):
[A] controversy over Twitter postings by CallMeMoneyBags … presents the latest challenge in the Northern District of California to the well established rule, first established in 2001 in Dendrite International v. Doe, previously followed in that district as well as in federal and state courts across the country,
- that a would-be plaintiff claiming that its rights have been violated by anonymous online speech has to make a showing, supported by both legal argument and an evidentiary showing,
- that it has a tenable claim before it gets to identify the anonymous speaker and thus obtain the ability to serve the speaker with a summons and complaint and litigate its claim to a conclusion, and
- that assuming the plaintiff has made these showings, the court has to balance the right to enforce substantial claims through litigation against the prospective costs of breaching the right to speak anonymously.
The case arises in somewhat peculiar circumstances. Over a period of a few days in October 2020, a Twitter user using the handle "CallMeMoneyBags," who specialized in tweets about private equity figures, posted a series of photographs of nubile women to which he appended texts suggesting that Brian Sheth, a private equity billionaire, was now investing his wealth in such women (the tweets and photos appear at pages 3 to 5 here). A mysterious entity named Bayside Advisory, LLC, which appears to have been first formed in Delaware that same month, and was not even registered to do business in California until January 2021, served a DMCA takedown notice on Twitter, contending that the tweets infringed its copyright in the photos, and followed that notice with a subpoena that it obtained under section 512(h) of the DMCA, seeking to identify CallMeMoneyBags for the claimed purpose of enforcing its copyright.
Twitter objected to the subpoena and, when Bayside persisted, moved to quash on First Amendment grounds, expressing suspicion that Sheth himself was behind the DMCA takedown and subpoena, and insisting that Bayside make a showing that its copyright claim could surmount the anonymous user's potential fair use defense before the user's identification was compelled. Bayside cross-moved to compel compliance.
