Twitter Taking Down Trump Campaign Video Over Questionable Copyright Claim Demonstrates Why Trump Should Support Section 230

from the better-for-free-speech dept

Here’s an interesting tidbit: the latest move by Twitter to deal with a tweet related to President Trump is that it pulled down a Trump campaign video that was presented as a “tribute” to George Floyd, the Minneapolis man murdered by police last week, and whose senseless death has brought so many thousands to the streets across the US. The video remains on YouTube for the moment. It includes a lot of still photos and a few short video clips. It appears that the copyright holder on one (or perhaps more) of those images and clips likely didn’t like it to be included for use by a President for a propaganda video they disagreed with, and filed the DMCA claim.

I think there’s a very strong fair use argument here for a whole variety of reasons (and, yes, I fully understand the moral claims that whoever took this photo may feel about it being used in this way, but copyright is not supposed to be used in that way).

But seeing as this comes so soon after Trump’s complete and total meltdown over Twitter and Section 230 after it added some additional context to one of his tweets — leading him to state publicly that Section 230 should be revoked — I do wonder if this move, in which a video was actually taken down (unlike with his tweets), will have him similarly rage against copyright law? Will we see an executive order demanding an impossible reinterpretation of Section 512’s notice-and-takedown provisions? Or does it not work like that?

Of course, what this really demonstrates is why Trump and his fans should absolutely support Section 230, rather than pan it. Section 230, among other things, gives Twitter the freedom to decide how best to run its site, and to date, that’s meant bending over backwards to keep the President’s tweets online and available for people to view. However, Section 230 explicitly exempts intellectual property. For copyright, there’s Section 512 of the DMCA, which is much, much weaker than CDA 230. With CDA 230, there’s an immunity — if there’s 3rd party content, a site is not liable and also a site cannot be liable for its moderation choices. With DMCA 512, it’s a “safe harbor.” Where if you meet certain conditions, you can then be protected. But one element of that safe harbor, is that to retain it you have to take down the content upon receipt of a valid DMCA takedown notice.

I’ve long argued that this aspect of the DMCA 512, in which the threat of significant liability from the state (i.e., the court system) raises serious 1st Amendment issues. That’s because the law heavily favors silencing content with the threat of massive liability if you don’t. And the system is heavily imbalanced as there’s no effective punishment for false notices, meaning the system is weighted very, very heavily in favor of censorship.

So here’s a good point to compare how the two different “intermediary liability” regimes actually work. Under CDA 230, free speech is much more protected. Indeed, the very nature of it is that the courts under 230 cannot force sites to take down speech (they leave that choice up to the sites themselves). Under DMCA 512, however, the liability issue makes it very, very easy to issue bogus takedowns that lead to content being removed.

It’s interesting that this is all coming a week after Trump’s bizarre tirade against 230, and the same week that the Senate argued that we should make the censoring power of the DMCA even more censorial.

It seems a much better approach would be to leave 230 alone, but fix DMCA 512 by getting rid of the imbalanced nature in putting tremendous state pressure on websites to remove content based solely on an accusation of infringement.

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Comments on “Twitter Taking Down Trump Campaign Video Over Questionable Copyright Claim Demonstrates Why Trump Should Support Section 230”

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21 Comments
Scary Devil Monastery (profile) says:

Re: Re:

"I never did get an answer from Ol’ Blue Balls in re: the question of how someone can support copyright but stand against corporate censorship via copyright. ????"

Compartmentalization. Every human being has a self-defense mechanism when they are confronted with two opposing beliefs they simultaneously hold to be true. Once you force both beliefs to interact, cognitive dissonance ensues, followed by some form of atavistic reaction – in old Baghdad Bob’s case he usually just lost his shit and started screaming in all-caps hysterics about how we were all going to be dragged off in chains like the filthy pirates that we were.

He did give us the answer multiple times – a number of ad homs, some straw man arguments, and a promise to never come around here again. For the nth time in a row. I think you’ll have to settle for that.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Actual Defense?

"section 230 defense letter "

I looked … google did not find anything but just for fun, how would one create a section 230 defense letter ?

Dear Section 230,
I didn’t do it and take no responsibility. I talked to me and I said I didn’t do it.

This comment has been deemed insightful by the community.
R.H. (profile) says:

Re: Re:

Technically there is a penalty for a false notice:

17 U.S. Code § 512
(f)Misrepresentations.—Any person who knowingly materially misrepresents under this section—

(1)that material or activity is infringing, or

(2)that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

However, this has been effectively neutered by caselaw. The courts have ruled that you effectively need to violate 17 U.S. Code § 512(f) on purpose to fall afoul of it.

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Wishing for a bit much there, aren't ya.

Yeah, like you said. Blame twitter instead of the law. Blame 230 instead of white people. Blame black people instead of white people. Blame rioters instead of white people. Blame blame blame in the wrong wrong wrong place. White people are to blame. And if they’re not, then history, statues, slavery and white privilege are to blame, so it’s pretty much the same.

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Re: Wishing for a bit much there, aren't ya.

You forget that large numbers of blacks are cops, national guard and military personnel. https://www.governing.com/gov-data/safety-justice/police-department-officer-demographics-minority-representation.html Many of those police involved in brutality against peaceful protesters are black.

There are blacks in government on both sides. https://www.pewresearch.org/fact-tank/2019/02/08/for-the-fifth-time-in-a-row-the-new-congress-is-the-most-racially-and-ethnically-diverse-ever/

Blacks commit crimes against other blacks 10 times as often as whites against blacks. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/tables/expanded-homicide-data-table-3.xls

Your myopic world view that places all of the power and blame in white hands is misguided and self-destructive. Slavery in history is real but no longer exists in America and while white ancestors may owe black ancestors a debt, today’s descendants don’t owe anyone anything for that (are you aware that there were black slave owners, too?). Racial bias is the problem we need to work on in modern times and that bias goes both ways. Stop playing the perpetual victim and do something positive to help fix the problem such as protesting police brutality in general which affects all races, not just blacks. https://www.statista.com/statistics/585152/people-shot-to-death-by-us-police-by-race/

Anonymous Coward says:

Re: Re: Re:2 Re:

No, no I couldn’t because I don’t support that argument. Consider the post I was replying to. It was full of "blame the whites for all the things!" when that’s not remotely accurate or appropriate. We’re never going to solve any of this until we can all honestly and critically study the facts to form a basis to begin fixing things. And the truth is that reality is nowhere close to being all about white-on-black crime and brutality. It’s far more nuanced than that.

Yes, there is obvious racism involved in the larger problem but that’s only a part of the much larger puzzle and focusing solely on the racism angle won’t actually solve anything long-term. We have to fix several things at once.

You’re dismissed to go ponder that for a bit instead of always blindly toeing the far-left party line.

ECA (profile) says:

To long.

Watched the video, and its the garbage of a group that Wants you to be domesticated..Not to care as this is always happening, and is nothing new.

And its correct in that ‘its nothing new’.
But we have corporatized and privatized, just about everything. You are still supposed to think, that you are not a slave. But we are.

Corps have no responsibility to the nation or to you.. But we work for them. For what reason, besides trying to feed ourselves and pay off our bills that go back to the corps.

HOW long do we need to wait for the Gov. to put a foot down(state or fed) with the understanding, that if you put all of us in jail, there will no longer be anyone to pay them wages. We created laws years ago, about freedom and races, and religion, and for SOME stupid reason, they arnt being met.
So what do the people do, if(in all this time) nothing has or will be DONE? They did it in the 60’s and the cops got he fire hoses and clubs out. and they didnt learn a thing. It is demanded of us to BE PEACEFUL and when we are, nothing gets done or corrected.
The USA has had employment problems since Before the Civil war. And it was part of the cause of that war. And it was solved, by that war and all the deaths, and How the war machine works. The corps are never on our side. But when taxes were at 90%, those corps REALLY had to work hard, to get profits to pay the Upper echelons of owners and Boss’s. NOW they sit back, send a note to china, have the goods delivered, then shipped to areas around the USA.. They dont need any workers, here in the USA except to deliver the goods.
They dont need/want ideas that Can work, they make them up as they want, and fail most of the time, because, NO ONE ASKED IF WE NEEDED/WANTED IT, or that we already HAD something like it already.

Police are not trained to be Peace makers or to Solve problems. IMO, I dont think they are taught much about laws either. They are there to DO as they are told and not think about what they are doing.(military had/has this problem, that you dont follow an unethical request or order)
WE try to have police Prove their reliability, with a camera system and what happens? SOMEONE left the switch on the camera. (privacy sake??) We get more dashcams showing us the problems then we get THEIR personal interactions with the people.
Police that have no interpersonal skills, or have them BEAT out of their heads. Interacting with the rest of us. At this time, Many of those police (in metro areas, esp.) seem to be willing to make things worse then to make them better.

Robert Freetard (profile) says:

The problem here is that the spray paint orange idiot..

The problem here is that the spray painted orange idiot has no clue whatsoever of what he is doing, let alone what section 230 means.

Anything that prevents him from getting his way is bad, anything that contradicts his lies is "fake news" and anyone that questions his totally moronic and constantly changing narrative is a bad person/reporter.

If all of that is not clue enough that he needs to be removed from office ASAP, and by voting if nothing sooner, then you need help as much as he does.

Anonymous Coward says:

Re: The problem here is that the spray paint orange idiot..

Sadly almost half of this country is dumb enough to keep voting for that waste of oxygen.

I really don’t get why any poor American family would ever vote Trump. Trump doesn’t give a rat’s asshole about any of them. It can’t be about politics. It must be entirely about religion and Republicans being the party of racists and bigots.

Too bad we can’t just pack every last Republican onto all those idle Carnival cruise ships and set them adrift without fuel. …Or can we?

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