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Twitter v. Twitter: Elon Musk’s site faces up against own precedent in GitHub source-code leak

Elon Musk and Twitter

This illustration photo taken on July 8, 2022, shows Elon Musk’s Twitter page displayed on the screen of a smartphone with the Twitter logo in the background in Los Angeles. (Photo by CHRIS DELMAS/AFP via Getty Images)

Some four months before Elon Musk officially took over as CEO, Twitter scored a victory in a case involving a private-equity billionaire and one of its anonymous users. That precedent could spell defeat for Twitter’s current legal efforts to find out who leaked its source code to GitHub, a media law expert told Law&Crime.

The case involved a then-unknown Twitter user going by the handle @CallMeMoneyBags, who — as the name suggested — poked fun at wealthy people in tech, finance or politics, such as Jeff Bezos, Nancy Pelosi and Musk. The legal wrangling started when the account turned its attention to billionaire financier Brian Sheth.

Some of the tweets at issue have since been removed but remain summarized in a court order.

“Over ten days, MoneyBags tweeted about Sheth six times, each time commenting on Sheth’s wealth and alleged lifestyle,” the 15-page order states. “One tweet, for example, reads: ‘Brian Sheth has upgraded in his personal life. The only thing better than having a wife . . . is having a hot young girlfriend.’ The tweet was accompanied by hashtags including ‘#FilthyRich’ and ‘#BabeAlert’ and included a photograph of a woman in a bikini and high heels. The other tweets were similar, each containing a photo of a woman and many alluding to an extramarital affair between her and Sheth.”

A shadowy company soon sprang into action.

“Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account,” recounted U.S. District Judge Vince Chhabria, from the Northern District of California.

Chhabria’s ruling established a precedent that an “unmasking” subpoena can be quashed where “revealing the user’s identity would violate his First Amendment rights.”

Former federal prosecutor Mitchell Epner, who practices media law as a partner of Rottenberg Lipman Rich PC, noted that the case established that an “[alleged infringer’s] interest in anonymity . . . may be so great as to outweigh [the copyright holder’s] interest in enforcing his copyright.”

The precedent was as fateful for MoneyBags as it was for Twitter.

When firing off the controversial tweets, MoneyBags had fewer than 400 followers. In a textbook definition of the Streisand effect, the account has since ballooned to more than 14,000. The Streisand effect gets its name from the singer and actress, who attempted to suppress an aerial photograph of her Malibu mansion — but instead, turned an image that had been viewed six times into one seen by hundreds of thousands of people.

As for Twitter’s leaked code, GitHub — an online collaboration hub for software developers — took it down within a day of receiving a copyright infringement notice but The New York Times reported that it appeared to have been on the site for several months. Musk has promised to make more of Twitter’s source code public, subject to constraints to protect user security, but he’s reportedly feared such a leak from scores of laid-off workers.

As the company hunts for the leaker, Epner expects Twitter to be forced to satisfy a test of their own creation.

“So, even if the Court issues the subpoena (which it likely will), GitHub might be able to quash the subpoena,” Epner said. “The decision would depend on Fair Use factors (a 4-part test) not addressed in Twitter’s request for the issuance of the subpoena.”

Epner said that either GitHub or the leaker would have standing to try to quash the subpoena.

“Either the user or GitHub can move to quash and use the Twitter case as precedent to prove that Twitter cannot get what Twitter wants,” Epner said.

Twitter’s attorney did not immediately respond to an email requesting comment. Neither did GitHub.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."