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.

Filed Under: campaign video, copyright, dmca, dmca 512, donald trump, free speech, george floyd, notice and takedown, section 230, takedowns
Companies: twitter


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  • icon
    Stephen T. Stone (profile), 5 Jun 2020 @ 1:33pm

    Y’know, 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. 🤔

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jun 2020 @ 2:01pm

      Re:

      Where's Poochie?

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 5 Jun 2020 @ 3:44pm

      Re:

      You can safely assume it would have involved ranting about common law.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 8 Jun 2020 @ 8:14am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 5 Jun 2020 @ 1:59pm

    Actual Defense?

    I'm skeptical that if the Trump campaign sends a section 230 defense letter to Twitter that they will put the video back up. Section 512 counterclaim, yes, perhaps. But this might only strengthen the calls for reform, if people want changes to both 230 and 512.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 5 Jun 2020 @ 2:39pm

      a section 230 defense letter

      There literally isn’t such a thing.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2020 @ 7:40am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2020 @ 2:42pm

    Seems fair to me. Live by the sword, die by the sword. Trump shouldn't get any protections if he opposes them for others.

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 5 Jun 2020 @ 4:24pm

    no effective punishment for false notices

    This is, of course, a glaring hole in the system. And to think that most of the people involved in writing such laws are lawyers. You don't suppose they might have been influenced to leave this hole open, do you? Naw! Couldn't be!

    reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 6 Jun 2020 @ 10:59am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Matteste, 6 Jun 2020 @ 2:13am

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

    Nah, he is more likely to just blame Twitter instead of the law and will somehow believe that revoking 230 would fix it.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 6 Jun 2020 @ 2:29am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 6 Jun 2020 @ 12:38pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    Robert Freetard (profile), 7 Jun 2020 @ 3:12am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2020 @ 5:22pm

      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?

      reply to this | link to this | view in chronology ]


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