It was just a couple months ago that Pope Benedict began tweeting to great fanfare and attention. He quickly had well over a million followers. Of course, as you may have heard, the Pope decided to become the first Pope in about 600 years to retire. And, now that this has taken effect... the Vatican appears to have deleted every one of his tweets. That is, uh, not how you use Twitter. Sure, tweets can be deleted, but it seems particularly bizarre to delete the entire historical record of this one Pope's tweets, even if there were a small number of them. Of course, at the very least, this means they won't have to deal with the ex-Pope still having his Twitter login going and rogue tweeting from retirement.

Update: As a few people have pointed out, the Vatican has set up an archive of his tweets on their own website. Still doesn't explain why they had to erase the originals.

Yesterday, Tim Cushing wrote a post about Teri Buhl, a journalist who claimed via her Twitter profile that her tweets were "not publishable." When questioned on this, she threatened to sue if someone republished her tweets. Some knowledgeable lawyers gave their opinion on this (that it was all hogwash), and at least one had a short email exchange with Buhl. Hilarity ensued. You can read that whole thing for yourself.

This is the followup. A little over an hour after the post went live, we received an email from Teri Buhl demanding a "correction" (without explanation) and saying that we needed to call her about Tim's story:

I would like an editor to please call about the story Tim just wrote on me. Like now

We have no obligation to call her, and given her previous engagements with others, we felt that there was no reason to discuss this with her. She later posted a comment on the post itself, asking Tim to contact her. He did, and she sent over a statement, and a series of other emails, partly (declared by her) "on the record" and partly "off the record." To be 100% clear: we have zero obligation to not publish her "off the record" comments. We made no arrangements with her to honor her requests that certain comments be "off the record."

Buhl appears to be under the false impression that merely claiming something is "off the record" leads to an obligation that she not be quoted, and that it provides her some sort of legal status, even when others quote her. This applies both to the original story about her tweets and to her follow up emails. Separately, she asked Tim to provide my phone number, and she called our corporate line multiple times this morning, telling him that she "always" calls a subject for comment before publishing a story about them. That may be her decision as a reporter, but there is no such requirement. That's not how freedom of the press or freedom of expression works. Finally, Jim Romenesko picked up on our story in his "Morning Report" on his super popular media blog, leading Teri to send Jim the same basic statement she sent us ("on the record") along with a separate statement suggesting that we had some sort of obligation to contact her before running our story. Let's deal with that one first, and then we'll get into her other claims.

"Techdirt did not call me for comment about that story you followed this am [in the Morning Report]," writes Teri Buhl....

"I finally reached the reporter early this am who says he is working at his day job and can't update the story until he gets home. Then he won't give me the info to directly reach a techdirt editor."

Again, to be clear: we have no obligation to contact her before writing a story about information that was made public. For her to imply that we needed to do so is simply incorrect. Tim correctly noted to her that he was not at his computer, but that he had forwarded her emails to me. He did not, as she implies, promise to update the story. He also did send her to the contact page at Techdirt, which is the best way to reach those of us here.

Moving on to the statement. We will break this down, sentence by sentence, leaving typos and grammatical oddities in place.

On Record Comment:

Again, we made no agreement to keep certain comments on or off the record. Yes, it is a journalistic convention that journalists respect such requests when the people are sources, but it is standard that both sides first agree to that convention. It is not a unilateral thing that you can just declare. When talking to sources we generally offer to keep certain comments off the record. Sometimes sources approach us and ask us to keep certain comments off the record, and we then consider the situation and decide whether or not to accept. It is then that the source chooses whether or not to share.

In this case, none of that is happening. First off, Teri Buhl is not a "source." She is the subject of the story, and we wrote about her comments and discussions with others that made their way into the public record. We have no obligation to keep anything "off the record" nor did we ever agree to any such thing.

My tweets were protected for a long time because I always looked at twitter as a conversation with my readers, not quotes, I'm not reporting news there. I can say silly things some times and I'd like to apologized for my knee jerk reaction to Gideon.

Protecting your tweets is a good idea if you want to keep them mostly quiet, but that is no guarantee that others won't share them. It is quite common for people to retweet the "protected" tweets of others, often not realizing that the original person had protected their tweets. That said, Buhl here implies that her tweets have been protected "for a long time," implying that Gideon only saw her tweet as a follower of hers, and that you could make the argument that the tweets were not, in fact, "public." I would have been willing to concede that perhaps her tweets were for followers only... except that there's evidence that this is simply not true at all. If you look at Buhl's Muck Rack page it does not currently show her tweets. Muck Rack is a site for journalists that creates profiles for those journalists and often pulls together their social media presence. Yet, a simple Google cache search for the feed turns up that, as of at least January 23rd, Buhl's tweets were clearly public on MuckRack. Here's a screenshot: Could it be that Muck Rack has a way to display protected tweets? No. The site directly states that it can only accept public Twitter feeds. And, even if Muck Rack was magically reposting her tweets from a "protected" feed, it would still be a case that her tweets were still being made public, thus depriving her of any claim that the tweets were ever private. In other words, despite her suggestion that her Twitter stream was protected for "a long time," there is substantial evidence that this is not true. If she would like to present evidence to the contrary, we are open to reviewing it. Update: Buhl told Poynter's Jeff Sonderman that she had unprotected her account "a few months ago," directly contradicting her suggestion to us that her tweets were protected during this whole thing.

Of course I can't sue him/her because I don't even know the person's real name.

This has nothing to do with whether or not you can sue someone. Has she honestly never heard of a John Doe lawsuit?

Not publishing my tweets is about a copyright issue for me.

For Teri Buhl, perhaps, but not for copyright law for the most part. We've actually covered some of the issues about the ability to copyright tweets in the past. There may be some elements that are copyrightable, and many that are not. Even so, whether or not someone then quotes you from your tweets is not likely to be "a copyright issue." If, as is the case, we were quoting statements made by her (and repeated by others), and adding plenty of additional commentary to it, there is no copyright issue at all. We are quoting her, not "publishing" her work. Furthermore, even if she went so far as to claim copyright over it, the fair use claims are obvious and quite strong.

I make money off my words, research, and analysis as a journalist.

That may be true, but it has no bearing on anything here.

I never print someone's tweet in a story because 1) I didn't get that comment from them directly

That is her choice, but it has no bearing on whether or not someone else can do so.

2) tweets can be changed and manipulated.

Original tweets can be deleted, but not changed. So, that's wrong. Could a third party change someone else's tweet in the process of retweeting and/or taking a screenshot? Possibly, though that would be quite a bit of effort, and no one seems to suggest that happened here. Buhl's issue here seems to be that she would not quote a tweet, and therefore, when she declares her tweets not quotable, everyone needs to respect that. That is not how things work.

I 've never had another jurno ignore that request. I think it's ironic that lawyer choose to do it.

It is surprising that she's never seen journalists ignore requests to keep her tweets private, though perhaps it's because there's never been any reason to quote her prior to this. And, of course, it's not true. A quick search on Twitter finds people retweeting Buhl's tweets publicly prior to all of this happening. Either way, as stated above, there is no obligation not to quote her just because she says so. Also, it is not, at all, "ironic" that a lawyer chose to do so. He did so because he understands the law and knows that the original claim is bogus.

Twitter says I own my tweets and I'm giving them license to use them but I simply don't think that means I am giving others license. Of course it also depends on what the tweet is to proven I own the copyright.

This is true, but if you are quoting someone and relying on fair use, then we do not need a "license" from either Buhl or Twitter. And, yes, there is also the missing step of proving that what is in the tweets is copyrightable and owned -- but also that our use is not fair use, de minimis use, or any other of a long list of defenses.

As far as Mark Bennett - I would like to sue him and see how copyright law relating to tweets and photos in tweets wuld be tested. If can afford to do it I will. There is not a lot of case law for this in the U.S. I am not fan of aggregater sites who take journalist original work, screen grab it, and don't link or credit back to the original reporting. It think that's stealing page views and intellectual content.

As a site that reports on all sorts of nutty copyright cases, including quite a few claims from people believing, incorrectly, that aggregation is "stealing," it is possible that if she did sue Bennett, it would make for an interesting story for us to cover, though the crux of that coverage would most likely concern how ridiculous the case would be and the fact that it has about as close to zero a chance of succeeding as possible. Contrary to her claims, there is an awful lot of case law in the US concerning most of the key issues here, and all of it goes against her arguments.

Tim - please publish this in the story and write at the top there is an update.

I have taken over this story, and am publishing her statement right here in this post (along with our response, obviously). I will, however, add an update to the original post pointing people to this post.

Of course, that was not the end of the exchange. She also provided an "off the record" statement, saying that the background photo on her Twitter profile is covered by copyright, and demanded that we take down the image of her Twitter profile because "as a tech blogger I hoping you will respect copyright laws." We are leaving that image up, because even if the image is covered by copyright, we are using it under fair use rules, as part of reporting on her story. As such, it is perfectly reasonable to show her profile which includes her ludicrous comment that "tweets are not publishable" (which kicked off this whole thing). Since the bio section of your Twitter profile is able to be changed, it makes extra sense to show a screenshot to prove its accuracy.

It is unclear whether or not Ms. Buhl is familiar with fair use. I would hope that she investigates the issue carefully before further commenting about it or seeking any sort of legal action.

Buhl sent another, separate, email complaining about Tim's coverage of her arrest, much of which was based on a report from Patch. Her main concern here was that she is disputing the allegations, and she demanded that he note that the charges are "alleged" and that she "denies" them. Of course, both of those things were abundantly clear in the original post. The post does mention that her actions were alleged, and that a trial is upcoming. If she weren't fighting the charges, there wouldn't be any such trial. She further claims that "I am actually not charged with invasion or privacy or theft of anyone's personal information." Nowhere did we say that she was charged with any of those things, so there is nothing to correct on that front. Either way, in this post, we will note, again, that she is going to court over these issues, and thus, clearly, denies the "alleged" charges against her.

In the end, we're not at all clear on what she thinks she is accomplishing here, other than calling more attention to her initial claim that her tweets are "not publishable," and then calling more attention to her overall actions. We continue to stand by our reporting on this matter.

Update: In case this isn't enough, there's a follow up to this story, as Teri Buhl is apparently not a fan of our writeup.

Choose your battles carefully. This warning/advice is more relevant than ever in an era of instant feedback, social media and thousands of pages of "relevant results" microseconds away. Here's a small story of how not to deal with a problem caused by your own actions.

Mark Bennett, a Houston criminal defense lawyer, was recently pointed in the direction of a rather inexplicable statement attached to a Twitter profile. Teri Buhl, an investigative journalist specializing in Wall Street, has this wording on her profile page:

A friend of Bennett's (@gideonstrumpet) asked, "What does that mean?" Buhl replied:


Gideon sensibly replied "ok thanks. I don't know how you prevent that, though. I could write a post quoting you."

At this point, Buhl went "legal," responding that she would sue him because she "stated" her tweets are not "on record comments." And she certainly could, although one wonders who would take her case. Gideon asked for a few second opinions on the legality of Buhl's claim, and got answers from these two gentlemen whose names are likely familiar to Techdirt regulars, Marc Randazza and Popehat.


So, we have someone thinking their public tweets are private property, and therefore lawsuit-bait if anyone attempts to "quote" them. While Twitter's TOS assures users that their Tweets are their property, it's quite another thing to state something publicly and then claim you don't want it quoted. Would a retweet be a violation of Buhl's statement? After all, it's a "direct quote" originating from another account. What about embedding the tweet? Still a problem? Even if Buhl's claim wasn't baseless, she'd still have a hell of a time enforcing it. If you don't want something you said going public, why on earth would you use a very public platform like Twitter to say it?

It gets uglier from there, though. Buhl decided to continue her legal threats via email shortly after Mark Bennett posted screencaps of her tweets.


This prompted Bennett to do a little digging. For someone who's so concerned with retaining strict control of her information, Buhl certainly doesn't seem to mind throwing around other people's information -- even the contents of a teenage girl's personal journal.

A New Canaan woman police say posted personal and sexually explicit information on Facebook about her boyfriend's 17-year-old daughter was arraigned Tuesday in state Superior Court on charges of second-degree harassment, second-degree breach of peace and interfering with an officer.

Teri Buhl, 38, of 81 Locust Ave., appeared briefly before Judge Maureen D. Dennis with her lawyer, Christopher W. Caldwell of Norwalk...

Buhl surrendered on Oct. 27 at New Canaan police headquarters after learning that a warrant had been obtained for her arrest. She was released after posting a $5,000 bond.

Here's how Buhl allegedly set about "publishing" someone else's much more private "statements:"

A look at the documents that led to the warrant and arrest tells a disturbing story of Web-based strong-arming and privacy invasion from a woman who knew her victim and attempted to disguise her own identity.

New Canaan police Youth Bureau Commander Sgt. Carol Ogrinc said in an affidavit that the girl and her father, Paul Brody, came to police June 24 to report that someone using the name 'Tasha Moore' had posted personal notes from the girl's journal on Facebook.

The girl said she kept the journal in her dresser drawer in her bedroom, and that she wrote the notes shown on Facebook last April. The girl said she had replied to the e-mail address provided by Moore on her Facebook page, and had told Moore to stop posting personal information about her or she would contact police.

Moore reportedly answered that she welcomed the legal action and knew the girl's father was a corporate lawyer. Moore said she didn't think the girl would contact police because then her father would find out about the embarrassing information from the journal, according to Ogrinc's statement.

As Bennett points out, it's apparently OK to publicly post information from a minor's personal journal, but not OK to post a public Teri Buhl tweet anywhere else on the internet.

Buhl has finally done what she should have done a long time ago and taken her account private. This will likely be the end of this story as Buhl has probably realized she's on very shaky ground. (This belated tweet captured via her page at Muck Rack seems to confirm this.)


With a trial date set for March 22nd, she may not have time to fight another legal battle. Not only that, but if she's going to go after "republishers" like Bennett and Gideon, she's also going to need to free up time to go after less human foes like favstar, Topsy and yfrog.

Here's a suggestion: don't antagonize people by attaching implicit legal threats to your public profile. All it does is attract the kind of attention you don't want -- for instance, another public airing of your alleged illegal actions. It doesn't win you any new friends or followers and it certainly does very little to raise anyone's estimation of you. Instead, it makes you look like exactly what you are -- someone who's going to slip into "sue" mode at the drop of a tweet.

Techdirt wrote about how the UK's Twitter Joke conviction dragged its slow way through the various appeals before finally being resolved with the defendant's acquittal. As you will recall, the issue was somebody making an ill-advised joke about blowing up an airport if he couldn't fly out of it:

Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!

It's great that Paul Chambers, the person concerned here, finally emerged victorious in his fight against this ridiculous conviction. But of course the danger that a thoughtless joke on Twitter might have serious consequences remains, as this report from The Epoch Times about a recent case in China highlights:

Four days before the [Chinese Communist] Party's 18th Congress, when a new set of Chinese leaders was sworn in to rule China, Zhai Xiaobing mocked the event by suggesting it was the latest installment in the Final Destination film franchise. The 2000 supernatural horror movie depicts a teenager whose plane explodes, killing all but a few survivors, who then begin mysteriously dying.

Here's a translation of what Zhai tweeted (Chinese tweets can contain more content than those written in Western languages because just a few characters can represent a whole word):

Final Destination 6 will be in cinemas on November 6. The Great Hall of the People suddenly collapses, and only seven of the over 2000 people holding a meeting inside survive -- but afterwards, they each die, one by one. Is it the game of God, or the fury of the Grim Reaper? How did the mysterious number 18 unlock the gate of hell? The earthshaking world premier opens on November 8!

Obviously, not exactly a rib-tickler, and rather unwise given the extreme sensitivity of the Chinese authorities about this crucial handover of power. But even against that background, the response seems to be unduly severe: arrested and "disappeared".

Zhai had been accused of "spreading false and terrorist information," and was taken away by security forces, according to netizen @iamhudi who called Zhai's wife. The fact that he has been disappeared was later corroborated by two other individuals who visited the family's house, according to Yaxue Cao, a writer and blogger who maintains contacts in China.

Worryingly, people have also lost contact with his wife, although it's not yet clear whether she has been arrested too. Zhai's friends, and supporters of a more liberal approach to Chinese state control of online activities, are doing what they can, which is pretty much limited to online petitions. The precedent for what might happen to him isn't good. As The Epoch Times story explains:

The first "Twitter criminal," as she was called, was Wang Yi, an activist who in 2010 mocked hypernationalist young people with the tweet "Angry youth, charge!"

This was determined to be a case of "disturbing social order." The punishment? One year of re-education in the Henan Women's Labor Camp.

Perhaps Zhai's best hope is that the new Chinese leadership might decide to be lenient in this matter so as to create a positive atmosphere among the Chinese people for the start of its ten-year rule over them. Equally, it might not want to sour relationships with the West through imposing a harsh punishment for such a trivial matter, although that is less likely to be a consideration given China's rising self-confidence. Whatever the reason, let's hope the outcome of this Chinese Twitter joke story is ultimately the same as that in the UK.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

The Paul Chambers case has made plenty of news over the past few years since he was charged for tweeting a silly statement concerning closures at his local airport, Robin Hood Airport, at which he was supposed to take a flight the following week. The now famous tweet read:

"Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

No one who saw it felt it was a credible threat. The 600 friends who follow Chambers on Twitter didn't think anything of it. Six days later, someone at the airport found it while doing a regular Twitter search. Their conclusion, again, was that it was not a credible threat, but it was passed on to to the Ministry of Defense, and then to airport police, and then to a local police station. At each step of the way (until the final one), none of the people who saw it seemed to believe it was a credible threat, at all. And yet... the local police went after him anyway, roping the government into bringing charges.

Amazingly, to many of us, Chambers lost most of the early rounds, as the courts made twisted rationales for why he somehow "knew" this tweet would cause distress (even as they failed to show anyone actually distressed). However, it appears something has clicked with some courts in the UK on these issues. Chambers has now been acquitted. The full ruling (pdf and embedded below) is a worthwhile read. It starts out by laying out the timeline of events:

There was no evidence before the Crown Court to suggest that any of the followers of the appellant’s “tweet”, or indeed anyone else who may have seen the “tweet” posted on the appellant’s time line, found it to be of a menacing character or, at a time when the threat of terrorism is real, even minimally alarming. In fact nothing was done about it by anyone until 11 January 2010, some five days later when the duty manager responsible for security at Robin Hood Airport, while off duty at home, found it. Mr Duffield did not see this “tweet” on the appellant’s time line, and it was never sent to him or to the airport. Rather he was at home searching generally for any “tweets” which referred to Robin Hood Airport. In cross examination he said that he did not know whether the “tweet” was a joke or not, but as even a joke could cause major disruption it had to be investigated. Accordingly he referred the “tweet” to his manager, Mr Armson. Mr Armson was responsible for deciding whether any perceived threat to the airport should be graded as “credible” or “non-credible”. If “credible”, it was to be referred immediately to the Ministry of Defence, but if “noncredible”, as a matter of standard practice it was to be reported to the airport police. Mr Armson examined the appellant’s “tweet”. He regarded it as “non-credible”, not least because it featured the appellant’s name and, as he noted, the appellant was due to fly from the airport in the near future. Nevertheless in accordance with airport procedure he passed this “tweet” to the airport police. The airport police themselves took no action, presumably for exactly the same reason, but they decided to refer the matter on to the South Yorkshire police.

Basically, lots and lots of people saw the tweet and no one thought anything of it until a local police station decided to make an example of the guy. Even the South Yorkshire police didn't find the tweet credible -- until someone decided to arrest the guy. While the lower courts came up with all sorts of twisted rationales to support this, the High Court actually took something of a common sense approach:

We are of course well aware that the Crown Court concluded, as a matter of fact, that the message sent by the appellant was of a menacing character. Proper respect must be paid to such a finding. However, the findings do not address the unbroken pattern of evidence to be derived from the responses of those who read or must have read the message before the South Yorkshire Police investigated it. No weight appears to have been given to the lack of urgency which characterised the approach of the authorities to this problem, while the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message.

It's crazy that it had to go this far before common sense came into play, but I guess it's better late than never.

The UK has become famous for its overly aggressive libel laws and how they lead to libel tourism, with people from other countries running internet libel cases through the UK to take advantage of the favorable laws. Add to that the rise of Twitter, and questions about Twitter libel, and you've got an interesting legal situation to deal with. THREsq reports that perhaps the UK is now about to become the hotspot for "twiibel tourism" after it awarded $775k to a New Zealand cricket player, Chris Cairns, after the ex-chair of the Indian Premier League, Lalit Modi, had tweeted "Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today." The news report doesn't say if this is true or not, but the full ruling suggests there isn't enough evidence to support the claim.

Even if we accept that the accusation of match fixing is, indeed, false, there are still questions about jurisdiction and the size of the award -- made even more pressing considering how few people actually saw the tweet. From the court ruling:

The original Tweet was received by only a limited number of followers within England and Wales. One expert calculated that they numbered 95, the other 35. The parties have sensibly agreed that I should take the figure of 65. The second publication, to Cricinfo was on their website only for period of hours. The expert's figures for numbers of readers of this publication are respectively 450 and 1500. I shall proceed on the basis that about 1000 people read the second publication, which I have found carried the less grave but nonetheless serious meaning that there were strong grounds for suspecting that the claimant had been involved in match fixing. In respect of the second publication I also bear in mind that Cricinfo have settled with the Claimant, paying him £7,000 damages and a further sum for costs.

And yet the court still decides that the harm is so great that Modi should be hit with massive damages. All this is going to do is ensure a flood of such cases in the UK.

I would have hoped that, by now, most people could understand basic secondary liability issues, such as the difference between a service provider who provides the tools/service for communications and a content creator and/or publisher who actually creates or chooses the content. Unfortunately, when large sums of money are involved, people often have difficultly distinguishing the two. The latest situation involves a guy in Australia, named Joshua Meggitt, who appeared to have a legitimate defamation claim by Australian writer/TV personality Marieke Hardy. On her blog, she accused Meggitt of writing "ranting, hateful" articles about her. She then posted a link to her blog on Twitter, where it got a lot of attention. Hardy and Meggitt have already "settled" the dispute between each other, with a rumored $15,000 changing hands, but Meggitt has now sued Twitter directly claiming that it "published" the tweet by putting it on its front page.

It strikes me that there are a number of (significant) legal problems with this lawsuit. First, perhaps this happened a while ago, back when Twitter did show tweets on its front page, but nowadays it does not. Second, I'd be shocked if anyone really used Twitter's front page without an account to find links. Instead, it sounds like people who actually followed Hardy saw her tweet in their views from the site -- which wouldn't have anything to do with Twitter making any kind of editorial choice at all. Even if it was back under the (very) old system when Twitter did display some tweets, I'm pretty sure those were just random tweets from the stream. Arguing that Twitter has any real selection choice in those is pretty ridiculous.

Furthermore, it appears from the description in the article that the tweet from Hardy didn't even name Meggitt. Perhaps it did elsewhere, but the tweet repeated in the Sydney Morning Herald just says:

Her tweet read: ''I name and shame my 'anonymous' internet bully. Liberating business! Join me,'' with a link to her blog, where she incorrectly named Mr. Meggitt as the author of ''ranting, hateful'' articles about her.

In other words, it's unclear if even the tweet itself should be considered defamatory, rather than the blog post. Linking to a defamatory blog post should never be seen as defamatory itself. Either way, it seems we're getting even further and further away from any actually defamatory statement. If Twitter somehow is liable for defamatory comments written on a blog because someone then tweets a link to that blog, Twitter is going to become a hell of a lot less useful.

While Meggitt claims that he's not subject to Twitter's terms of service, since he doesn't use it, that's meaningless. The issue has nothing to do with Twitter's terms of service. It has to do with who's the actual liable party and that would be the person who made the defamatory statements. And, from everything that's been said, it sure likes like Meggitt has already settled the claim with that party...

It had to happen eventually. Apparently, there's a lawsuit going on over the "ownership" of a Twitter account that goes by the name OMGFacts, which (as you might have guessed, posts a bunch of random facts). It has nearly two million followers. Not bad. But there's now a federal lawsuit over who actually owns the feed. Apparently, there were two people who ran the account -- a 17-year-old student who started it and his 24-year-old "business partner" whose job it was to help develop the feed and get it more attention. The argument covers a bunch of ground on both intellectual property issues and contract issues. Basically, it seems like a business dispute where the end result is that perhaps neither party comes out of it happy. The Twitter angle just makes it that much more twisted. As Eric Goldman notes in a quote in the article:

"We've had 600 years to develop the rules on books," Goldman said. "We've had less than five years to develop how those rules apply to tweets."

If you're a sports fan, complaining about or criticizing sports officials, referees, umpires, etc. is often a part of the pastime itself. And, of course, some of the complaints are often exaggerated (to say the least). While many refs have learned to be rather stoic in the face of criticism, it appears that NBA ref Bill Spooner is going in a different direction. He's suing a Minnesota Timberwolves beat reporter, Jon Krawczynski, for defamation over a tweet claiming that Spooner had promised to help Minnesota get back two points it may have lost to a bad call. Now, assuming that Spooner made no such statement, this certainly could be defamatory. Whether or not it was actually malicious, or whether or not any actual harm came from it seem like open questions. Instead, all this is doing is drawing that much more attention to the original comments and to Spooner's reaction. Perhaps just staying stoic is a better option.

You may recall the controversy over Google reacting too aggressively in pulling down music blog posts (or entire blogs) based on DMCA takedown notices. Eventually, Google revamped its DMCA policy to better handle the situation, though there have still been some complaints. Tim Dickinson alerts us to a similar situation with Twitter -- except the details suggest it's much worse, and involves a clear abuse of the DMCA (which Twitter should be standing up to).

The story involves a music blogger named JP, who runs the appropriately named JP's blog. Not surprisingly, JP also has a Twitter account, where he mostly seems to post links to his blog posts. One such post was about the leak of the new album by The National. That post includes a link to Amazon where people can purchase the new album... and also a link to a download of one song (in MP3 format) from the album.

Someone -- and it's not at all clear who -- apparently filed a DMCA claim over the Twitter message about the leak, and Twitter responded by taking down the tweet and sending JP a note:

jp917, Apr 22 03:10 pm (PDT):
Hello,
The following material has been removed from your account in response to a DMCA take-down notice:
Tweet: http://twitter.com/jp917/statuses/12499491144 -- New Post: Leaked: The National -- High Violet http://jpsblog.net/2010/04/20/leaked-the-national-high-violet/

There are all sorts of problems with this that suggest a pretty big abuse of the DMCA, but first we should address a couple problems with JP's blog post about this situation. First, he puts the blame fully on Twitter, claiming that it's "Twitter" sending the DMCA takedown notices. That's not really true. Twitter is receiving a takedown notice (in theory) from the copyright holder, and Twitter is merely responding to that takedown and notifying the user. Second, JP claims that he only linked to Amazon and not to a download, but looking at his blog post, there are two clear links to a single song from the album -- one at Mediafire and the other via Box.net. He makes no claim that these are authorized, so perhaps they are potentially infringing, which makes things a bit messier. It is true that his main link is to Amazon, encouraging people to purchase, but there are those MP3 links as well (though, again, only to a single song, not the whole album).

Even so, this whole thing is troubling and a clear abuse of the DMCA -- which you would hope Twitter would stand up against. Specifically, nothing in the tweet itself is infringing -- which means that the DMCA takedown for the tweet is bogus, and a violation of the DMCA itself. Even if there was a link in the post that's infringing, we're talking about a takedown on a tweet that links to a blog that links to a potentially infringing file. That tweet itself is not a violation of copyright law in any way, and the takedown notice is clearly fraudulent. Pretending that anything that links to a page that links to a potentially infringing file is, by itself, copyright infringement, is clearly ridiculous.

On top of that, there have already been questions asked about the copyrightability of Twitter messages, and it's rare that such tweets would be covered by copyright. In this case, it's unlikely that there's any copyright (the tweet was just a headline, and for the most part, you can't copyright headlines). Even if it was covered by copyright, it would be JP's copyright for having written the headline. In other words, there's nothing in the tweet that is held as a copyright by someone else, and thus the takedown message itself was a clear abuse of the DMCA -- and a violation of basic First Amendment principles, as the takedown sought not to takedown copyrighted material (as allowed by the DMCA), but to silence conversation about a leak of an album through misuse of copyright law.

It's unfortunate that Twitter decided to take the easy way out and automatically pull down the clearly non-infringing message with no review whatsoever. It's actions like that which encourage more abuse of the DMCA. Doubly unfortunate is that nowhere does Twitter tell JP who sent the bogus takedown. It could be the band itself, or perhaps its label -- which appears to be Beggars Group (who is generally not so bad on these sorts of things). Either way, this is unfortunate on multiple levels. The takedown notice was clearly bogus (whoever sent it) and Twitter's response is unfortunate. I would have expected better from a company like Twitter.