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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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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  1. 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.

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