Twitter Taking Down Tweets Over Bogus DMCA Claims

from the that's-not-how-it-works dept

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.

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Comments on “Twitter Taking Down Tweets Over Bogus DMCA Claims”

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46 Comments
Chronno S. Trigger (profile) says:

Re: Re: Re:5 Re:

“when mike or his underlings stop trying to kill conversations.”

By pointing out that you’re posting on a site that links to a blog that links to a site that hosts potentially infringing content? That’s not killing a conversation, that’s pointing out your gaps in logic.

And how does one determine that this song is infringing? With so many musicians giving their music away for free to advertise their album, how easy will it be to make this kind of mistake? Wouldn’t sending a C&D to the site actually hosting the song not only have a wider benefit but also not have that persecuting the innocent thing?

btr1701 (profile) says:

Re: Re: Re:5 Re:

> when mike or his underlings stop trying to
> kill conversations.

So now pointing out the gaping flaws of logic and outright factual errors in your posts is now considered “killing conversations”?

Wow.

The only way that would work is if your definition of “conversation” is “everyone agrees with me and tells me how right and wonderful I am”.

Anonymous Coward says:

Re: Re: Re: Re:

The twitter post is a nothing but a link and a headline. Nothing in is infringing on anyone’s copyright.

I don’t know why I bother explaining this to you, since you’ll just ignore reason and logic and the actual law. We can add the DMCA to the list of laws you get completely wrong.

Though, personally, I enjoyed your CDA stupidity more than this instance.

Anonymous Coward says:

Re: Re: Re:2 Re:

sorry but the tweet was made to encourage violation, part of the package. twitter doesnt make the posts someone else does. the tweets are part of the promotion of their site which is actively promoting copyright violation. thin of the twitter account as an extension of the actual site in question. then it all makes sense.

John Robinson (profile) says:

Re: Re: Re:3 Re:

sorry but the tweet was made to encourage violation, part of the package. twitter doesnt make the posts someone else does. the tweets are part of the promotion of their site which is actively promoting copyright violation. thin of the twitter account as an extension of the actual site in question. then it all makes sense.

And if Twitter had removed the post because it violated their ToS that state you can’t link to copyright infringing material, then fair enough. But that’s not why the Tweet was removed. If it were they’d need to remove all of the Tweets that actively promote drugs, porn, and countless other illegal activity.

It was removed because of a DMCA takedown notice. Those notices apply to direct infringement. Which was not in the Tweet, anywhere.

btr1701 (profile) says:

Re: Re: Re:3 Re:

> thin of the twitter account as an extension of
> the actual site in question. then it all makes
> sense.

Well, except for the fact that the actual US Code doesn’t work that way. You can’t just decide to “think of things” a certain way and suddenly the law applies to them. The Code sets out specific conditions for violation, which the Twitter posting does not meet. Therefore, it’s not a copyright violation.

Ben (profile) says:

A Interesting Red Herring

Let me lead off by saying that there’s no question that this tweet does not infringe on the National’s Copyright in their music, so the takedown notice was pretty clearly improper.

That being said, there’s a red herring in the post. Even if a court decides that tweets aren’t copyrightable, you could still infringe copyright with a tweet.

A simple example: If I were to publish the entire contents of the first Harry Potter book by tweeting it 140 characters at a time, I’d clearly be infringing copyright with the stream as a whole, but also with each individual tweet, which is just a direct copy of the work. This would be true even if we accepted that a tweet was a short phrase that couldn’t be copyrighted.

Free Capitalist (profile) says:

Re: A(n) Interesting Red Herring

If I were to publish the entire contents of the first Harry Potter book by tweeting it 140 characters at a time, I’d clearly be infringing copyright with the stream as a whole,

I suppose you are right, but what an awful format in which to consume infringing material.

Much to the IP lawyer’s chagrin, whistling tunes and singing songs while walking around in public went out of style long ago.

Free Capitalist (profile) says:

Re: Re: Re: A(n) Interesting Red Herring

Not if somebody writes a program to tweet and then untweet files this way…

This could certainly be done. But unless all infringing tweeters agree on a standard for special tags within the tweet (i.e. Paragraph), the material would still look like… well I guess it would like like some comments I’ve read on certain message boards (no not yours).

Hulser (profile) says:

Re: A Interesting Red Herring

That being said, there’s a red herring in the post. Even if a court decides that tweets aren’t copyrightable, you could still infringe copyright with a tweet.

I believe Mike was just saying that even if you took the argument to an absurd level — by questioning whether the tweet itself could by copyrighted — that “there’s nothing in the tweet that is held as a copyright by someone else”, not that a tweet couldn’t necesarilly contain copyrighted material.

As for your serial tweeting a book idea, it sounds similar to an argument I’ve heard before that BitTorrent isn’t a copyright violation if you only have small sections of a copyrighted work at any given time.

DH's Love Child says:

Re: A Interesting Red Herring

“A simple example: If I were to publish the entire contents of the first Harry Potter book by tweeting it 140 characters at a time, I’d clearly be infringing copyright with the stream as a whole, but also with each individual tweet, which is just a direct copy of the work”

Actually, in the US, courts have ruled otherwise. While the aggregate might be infringing (that has not been tested) each of the tweets by themselves are not. US courts have ruled that even if the entirety of the tweet is quoted from a copyrighted work, unless the copyrighted work is also

Anonymous Coward says:

Perhaps one day piracy will become so prevalent that the copyright Nazis will be driven out of business when they can no longer afford their lawyer fees.
Then we can live in a land where entertainers and the bureaucracy that supports them will return to making money on par with average workers who actually contribute something tangible to society.
About 100 years ago being an actor or musician was about 1/2 a step up from being a whore, today the system that supports them uses loss of profits as an excuse to assail freedom of speech and expression.
It seems to make about as much sense as the National Association of Pimps and Hos (NAPH)tm, sueing Johns who managed to talk the ladies into giving them a free ride.

Anonymous Coward says:

Re: Re:

http://www.guardian.co.uk/tv-and-radio/2010/apr/25/vincent-kartheiser-mad-men-interview

Surely he should be by now? Mad Men sells across the world. Or is his agent very rich?

“I don’t really use an agent,” he says (though he is signed to ICM). “Maybe that’s where I am going wrong. TV is very different from where it was 10 years ago. There are so many more channels, so much less ad money; contracts have gone through the floor you know, at least mine have.

“Someone is no doubt making a ton of money. It’s like all creative media; you know there’s definitely money in it somewhere, but it doesn’t go to the actors or the writers or the journalists or whoever; we are way, way down the food chain.”

JP (user link) says:

Track linked to at the bottom of the page

Hi guys, I wrote the blog post an I’m glad that it sparked some dialogue as it did when some fellow music blogs saw my tweet about my other tweet being taken down. The track that I linked to at the bottom with the two links, had already been shared by Pitchfork since April 13 so I saw it as okay to post since it was also featured on the album.

Tim Dickinson (profile) says:

Thanks for picking this up Mike.

Most of the discussion may be a little sarcastic on here, but as you noted the takedown is pretty ridiculous in this case. Nothing in the tweet was infringing and it was not linking to infringing material. It was even linking to material that linked to infringing material.

I know this must have been a mistake by someone at Beggars, who you rightly point out are normally pretty decent towards how people consume their content. But the issue is how easily Twitter capitulated without doing any investigation – none. Had they even clicked the link in the tweet they would have seen that this was not infringement, but instead the law favours copyright holders so much that service providers just bow down to them when confrontation appears.

Jishnu Menon says:

Contributory infringement

Im pretty sure there’s at least a colorable contributory infringement liability argument if there was underlying direct infringement. the point is, there’s a process here that im not sure was followed: If jp didn’t feel the post was infringing, he could have sent a counternotice (instructions to do so likely accompanied the communication from Twitter)?

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