If Twitter Shuts Down Trump's Account For Repeat Infringement Then Will Trump Fans Finally Realize That Copyright Is The Problem?

from the or-are-we-still-in-a-facts-optional-world? dept

Over the last few months we've seen President Trump and his supporters repeatedly attack social media in general -- and Twitter specifically -- for apparently "arbitrary" moderation decisions. Yet, as we've pointed out repeatedly, it seems that the only times that Twitter has actually taken down content from Trump's Twitter account, it's been because they were effectively required to in response to DMCA takedown requests. It happened in early June, and then it happened to a Trump supporter, and last week it once again happened to Trump himself, when the band Linkin Park issued a takedown after Trump used their song in a video he posted to Twitter:

On Saturday night, President Trump retweeted a campaign video that featured the band's 2002 hit song 'In The End.' Linkin Park swiftly took action on having the video removed and shared a message with fans on Twitter.

Once again, though, rather than recognize that the structure of DMCA 512 that effectively creates massive incentives to pull down content is the issue, clueless Trump fans, like Judicial Watch's Tom Fitton, wanted to blame Twitter.

But, of course, it's not Twitter that's the issue here at all, but the structure of the DMCA. What's stunning is no Trump supporters seem at all willing to discuss this -- even as Trump-supporting Senator Thom Tillis, who heads the Intellectual Property Subcommittee, is actively working hard to make copyright law even more prone to censorship.

But here's the thing I wonder: at what point would Twitter have to shut down Trump's account as a repeat infringer? After all, based on the court rulings in the BMG v. Cox case, and some other related cases, courts have said that any repeat infringer policy doesn't need to take into account if there's actual infringement, just accusations of infringement. And, indeed, the US Copyright Office's recent report on Section 512 of the DMCA has endorsed that viewpoint.

And the DMCA does require you to have a policy to remove the accounts of repeat infringers, though it does allow for some leeway in how a service designs such a plan, so long as it does exist. In theory, Twitter could offer more "strikes" to "newsworthy" accounts, but at some point based on the way some courts (and the Copyright Office) have read the law (incorrectly to me, but who am I?), Twitter would be required to shut down the president's account.

And think of what a fucking mess that would be. At the very least, it might highlight why Section 512 is so problematic, and that the repeat infringer policy in particular can lead to absurd results. But, given how Trump and his supporters have responded to other DMCA issues, and the fact that his supporters in the Senate seem willing to make the law even more prone to these kinds of takedowns, it's likely that they'll just lie and blame Twitter for what the law itself requires.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 512i, content moderation, copyright, dmca, donald trump, repeat infringer
Companies: twitter


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Whoever, 22 Jul 2020 @ 9:56am

    Linkin Park ?

    What's the issue with Linkin Park getting the tweet taken down? That appears to be a valid claim of copyright infringement. I don't think that there is a fair use exception for partisan politics, is there?

    While your overall point about the DMCA is valid, I think that the example you use is not.

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

    • icon
      crade (profile), 22 Jul 2020 @ 10:18am

      Re: Linkin Park ?

      There might be fair use arguments, but thats really beside the point.

      Trump supporters are upset that the video was taken down. The video was taken down because it is required to be so by the DMCA, not due to a decision by Twitter. Whether the claim is a valid copyright or not doesn't really make any difference.

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

    • identicon
      Anonymous Coward, 22 Jul 2020 @ 10:26am

      Re: Linkin Park ?

      Try reading the article, and understanding what it actually says, that way you would be able to to address the actual points covered.. Hint is was not about the legality of the take down, but rather Trump and cronies blaming twitter for it.

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

    • icon
      Mike Masnick (profile), 22 Jul 2020 @ 10:31am

      Re: Linkin Park ?

      What's the issue with Linkin Park getting the tweet taken down?

      I don't have one. Where did I say I did?

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

    • identicon
      Bruce C., 22 Jul 2020 @ 10:45am

      Re: Linkin Park ?

      The problem isn't the takedown itself, except to the extent that the takedown provisions of the law are excessive. The problem is that Trump supporters are spinning it as Twitter's fault/more censorship rather than an inevitable consequence of complying with the law.

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

    • icon
      ECA (profile), 22 Jul 2020 @ 3:11pm

      Re: Linkin Park ?

      Its the old idea...
      "Im right, you are wrong"
      I can say what I want, and you have to live by the laws/regs.

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

  • icon
    Khym Chanur (profile), 22 Jul 2020 @ 10:10am

    Once again, though, rather than recognize that the structure of DMCA 512 that effectively creates massive incentives to pull down content is the issue, clueless Trump fans, like Judicial Watch's Tom Fitton, wanted to blame Twitter.

    Maybe he thinks that a sitting President is immune to DMCA takedown notices? Or that political campaign ads are immune?

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

  • identicon
    Anonymous Coward, 22 Jul 2020 @ 10:11am

    If Twitter Shuts Down Trump's Account For Repeat Infringement Then Will Trump Fans Finally Realize That Copyright Is The Problem?

    No... no they won't.

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

  • icon
    Rico R. (profile), 22 Jul 2020 @ 10:19am

    You’re far from the only one, Mike!

    I’ve posited the same thing on Facebook about Twitter’s refusal to terminate the President’s account could lead to Twitter losing their safe harbor. It would take an overzealous copyright holder to take Twitter to court over that refusal following their DMCA takedown against Trump, and I fear the results could be disastrous. But if Trump was an ordinary citizen, his account would have been terminated by their repeat infringer policy already, if not for another TOS violation.

    Unfortunately, I don’t think Trump supporters understand the law as written. I explained to a Trump supporter in the comments of a Facebook post how Panic! At the Disco had a viable copyright claim under the current law, if Trump continued to play their songs at his political rallies. I said nothing about my feelings about Trump or whether or not I agreed with that operation of copyright law, but I was still called a rather profane name because I as a Trump hater couldn’t see how Trump was just playing High Hopes for himself to pump himself up. The likelihood that Trump supporters would blame copyright law for Twitter’s hypothetical termination of Trump’s account is about as likely as Kanye West becoming the 46th President this year... It ain’t gonna happen!

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

    • icon
      Scary Devil Monastery (profile), 23 Jul 2020 @ 1:06am

      Re: You’re far from the only one, Mike!

      "The likelihood that Trump supporters would blame copyright law for Twitter’s hypothetical termination of Trump’s account is about as likely as Kanye West becoming the 46th President this year... It ain’t gonna happen!"

      Don't jinx it. Given the choice between Trump and Biden all it takes for a third party to become the write-in vote is a facebook post or three gone viral.

      It's implausible. But if anyone had told you four years ago Biden might end up the democrat candidate for president you would have given Kanye better odds. Just sayin'...

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

      • icon
        PaulT (profile), 23 Jul 2020 @ 1:40am

        Re: Re: You’re far from the only one, Mike!

        Well, I wouldn't. The only reason he didn't run in 2016 was because of family bereavement, not because he was unpopular or unlikely to win.

        However if you'd have told me in 2012 that there would be a President Trump, I'd have asked you to put down the crack pipe. Sigh...

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

        • icon
          Scary Devil Monastery (profile), 24 Jul 2020 @ 12:54am

          Re: Re: Re: You’re far from the only one, Mike!

          "However if you'd have told me in 2012 that there would be a President Trump, I'd have asked you to put down the crack pipe. Sigh..."

          You and me both. Hey, remember the old days when we knew Cameron and Abbot were the absolute bottom of the barrel when it came to dumbass motherfuckers in office? Good times. Good times...

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

          • icon
            PaulT (profile), 24 Jul 2020 @ 1:26am

            Re: Re: Re: Re: You’re far from the only one, Mike!

            Well, Abbot, yes. Unfortunately, Cameron managed to cause irreparable damage to the country then bailed when it was clear how badly he'd fucked up, leaving the same Tories he'd been trying to stop arguing to eventually take over the asylum. Whatever Boris is doing now, it's largely Cameron's fault for getting him there.

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

  • identicon
    Anonymous Coward, 22 Jul 2020 @ 10:23am

    i doubt it. it's just about impossible to put sense where there's no room!

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

  • icon
    Thad (profile), 22 Jul 2020 @ 10:28am

    I'ma go with Betteridge's Law of Headlines on this one.

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

  • icon
    That One Guy (profile), 22 Jul 2020 @ 10:40am

    'As neither we nor copyright are EVER wrong, it's you.'

    But, given how Trump and his supporters have responded to other DMCA issues, and the fact that his supporters in the Senate seem willing to make the law even more prone to these kinds of takedowns, it's likely that they'll just lie and blame Twitter for what the law itself requires.

    No 'likely' about it, everyone knows that The Dear Leader can do no wrong, that dastardly social media is always out to get him for completely unjustified reasons, and most of all that copyright can never be to blame for bad things, so if the account is terminated obviously it will have nothing to do with copyright and everything to do with yet more 'conservative' persecution.

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

    • icon
      crade (profile), 22 Jul 2020 @ 11:56am

      Re: 'As neither we nor copyright are EVER wrong, it's you.'

      Anything that actually helps fix their pretend problem is counterproductive to the goal of diminishing the value and impact of what they see as left leaning (dun dun duuuuuuuun!) companies

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

  • icon
    aethercowboy (profile), 22 Jul 2020 @ 11:03am

    Take Care

    I'm just waiting for Trump to use the Take Care clause to selectively not enforce Copyright.

    "We can't effectively enforce all copyright laws, so we'll have to just tackle the ones that aren't violated by me."

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

  • identicon
    Glenn, 22 Jul 2020 @ 11:53am

    Copyright is a problem. But so is Trump. Not mutually exclusive.

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

  • identicon
    Anonymous Coward, 22 Jul 2020 @ 2:17pm

    Prezident Can Save Twitter from Risk

    The Infringer-in-Chief can simply order the Copyright Office to cancel any copyrights he wants to infringe. DMCA me? Lose your copyright.

    OR

    The Boob-in-the-Oval-Office could promise Twitter to pardon them from prosecution for any violations of the DMCA which Twitter permits on the The-Big-D's behalf.

    Neither of these options strikes me any wackier than the shit he's pulled so far.

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

    • icon
      nasch (profile), 23 Jul 2020 @ 1:39pm

      Re: Prezident Can Save Twitter from Risk

      The Boob-in-the-Oval-Office could promise Twitter to pardon them from prosecution for any violations of the DMCA which Twitter permits on the The-Big-D's behalf.

      I think the problem would be civil suits, not criminal prosecution. And the president has no power over those.

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

  • identicon
    Anonymous Coward, 22 Jul 2020 @ 2:49pm

    A court in Japan has ruled that users who retweet posts with photos in them could be sued by the person who has ip rights on the photo.
    It, ll be hard to operate twitter in Japan if photographers start sueing random twitter users.
    Trump supporters would probably not know how dmca works,, they just presume twiitter is just censoring content posted by Conservative users.
    Or else they are just not bothered to look into how the laws around copyright work.

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

  • icon
    ECA (profile), 22 Jul 2020 @ 3:15pm

    WHO,

    Considers that the persons we elect, congress and white house, are above ANY LAW??

    Why do they Think that those responsible for the laws, dont have to live by the same ones we do? OR do some of those that LIKE this problem, Think, they can do the same and NOT be responsible to the corps, that had our Gov. MAKE the laws.

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

  • identicon
    Anonymous Coward, 22 Jul 2020 @ 3:21pm

    The "law and order" party is once against angry and confused when the laws they champion get applied to them. Shocker.

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

  • identicon
    Anonymous Coward, 22 Jul 2020 @ 3:57pm

    But, of course, it's not Twitter that's the issue here at all, but the structure of the DMCA

    "In the end, it doesn't even matter"

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

  • icon
    Code Monkey (profile), 22 Jul 2020 @ 4:41pm

    Clock is ticking...

    I can imagine Jack Dorsey looking at his watch on Jan 20, 2021, just waaaaaiting for the hands on his Mickey Mouse watch to hit 12:01pm.

    Then, he flips the switch and deletes Trump account...

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

    • icon
      That One Guy (profile), 22 Jul 2020 @ 5:10pm

      Re: Clock is ticking...

      Pleasant image but sadly Trump is far too good at getting attention for all the wrong reasons so there's basically no way a major social media platform is going to give him the boot even after he's out of office and risk him going to another platform and bringing a bunch of his cultists with him.

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

  • icon
    PaulT (profile), 22 Jul 2020 @ 10:44pm

    "Will Trump Fans Finally Realize That Copyright Is The Problem?"

    Ha ha ha ha.... No. Trump fans are not known for their ability to see reality, and that fails doubly when their cult leader is under attack.

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

  • icon
    Zane (profile), 23 Jul 2020 @ 1:53am

    Good for Linkin Park

    They don't want their music to be associated with Trump, and I can understand that. Assuming it was a valid copyright claim, then that let's exactly what copyright is designed for. So no, it's not a problem with copyright at all. The Trump campaign is free to use music for which they have copyright permission to use.

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

    • icon
      PaulT (profile), 23 Jul 2020 @ 2:17am

      Re: Good for Linkin Park

      "Assuming it was a valid copyright claim, then that let's exactly what copyright is designed for"

      I wouldn't say that as such, but it's worth noting that the licencing agencies involved do retain some rights for the artists

      https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf

      "Th e Trump campaign is free to use music for which they have copyright permission to use."

      ...and as the document above notes, the artist is free to tell them they don't have permission to associate them with political campaigns they don't approve of. The strange thing is, Republicans (mainly) seem completely incapable of using music from people who agree with them. Is it that hard to find a popular musician who would help them campaign rather than try shutting them down the instant they release something?

      Mind you, they also seem incapable of picking a "patriotic" song that isn't a scathing indictment of America when you actually listen to the lyrics (Born In The USA, Fortunate Son, etc).

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

      • icon
        Zane (profile), 23 Jul 2020 @ 2:38am

        Re: Re: Good for Linkin Park

        Mind you, they also seem incapable of picking a "patriotic" song that isn't a scathing indictment of America when you actually listen to the lyrics (Born In The USA, Fortunate Son, etc).

        Haha I agree to that. I don't know if their copyright claim is valid, or indeed if they have transferred it elsewhere. Assuming it is valid, it actually shows why copyright is actually needed. No way would I be happy for my music to be used to support a political campaign against my will. That is the whole point of copyright, to give some control of how their work is used. Copyright isn't the problem here, the problem is using material for which permission hasn't been sought.

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

        • icon
          PaulT (profile), 23 Jul 2020 @ 2:58am

          Re: Re: Re: Good for Linkin Park

          "Copyright isn't the problem here, the problem is using material for which permission hasn't been sought."

          Well... that's where it gets a bit more complicated. First, assuming they weren't straight up pirating, the campaign will have purchased a blanket licence from ASCAP and other agencies. That means they have immediate legal access to use millions of songs in the libraries of the labels signed with them. So, in theory, they have sought permission to use it.

          The issue with approval by the artist is explained in the link above. Basically, although the song is legally licenced, the artist has recourse to sue and otherwise block a campaign they disagree with on moral or political grounds. It's a little unclear whether this actually extends to issuing takedown notices, so in theory it could have been misused here.

          The other issue is who actually owns the music. Major label contracts usually involve the artist handing all copyright and ownership over to the label. If the label agrees with the use of a song, but the artist disagrees, there may be nothing the artist can do about it as they are no longer the copyright holder. In the case of Linkin Park, they own their own record label as a subsidiary of Warner, so thankfully that wasn't an issue here.

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

          • icon
            Zane (profile), 26 Jul 2020 @ 10:05am

            Re: Re: Re: Re: Good for Linkin Park

            That only applies to the use of music in the actual campaign marches. The issue at hand is a video, where they use the music for a Trump propaganda video. Your link notes that permission is needed in these circumstances, just as anyone producing a commercial would need to gain permission. They did not get permission.

            I've not seen the video, but this is a description of what it apparently contained:

            The video Trump retweeted earlier featured a cover of “In The End” that begins quietly and ominously, apparently implying the Democrats are about to ring in the apocalypse. Then the song revs up with images of the military, cops busting into doors, MAGA fans and the president at the Lincoln Memorial. It was apparently made by Trump supporters and posted on Twitter, The New York Post reported.

            “Time is a valuable thing. Watch it fly by as the pendulum swings. Watch it count down to the end of the day,” warn the lyrics of “In the End.” “The clock ticks life away.”

            For me it's a textbook example of why copyright is needed. I wouldn't want my work or indeed my voice to be used for political propaganda that I was against, I struggle to believe anyone would. At the end if the day that is exactly why we need copyright.

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

            • icon
              nasch (profile), 26 Jul 2020 @ 11:20am

              Re: Re: Re: Re: Re: Good for Linkin Park

              At the end if the day that is exactly why we need copyright.

              Perhaps, but that is not the stated purpose of copyright in the US: "To promote the Progress of Science and useful Arts". I say stated, because its actual purpose has become something entirely different over the years.

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

  • icon
    Ben (profile), 23 Jul 2020 @ 2:24am

    how long?

    How long is it going to be before someone decides to DMCA-512-bomb Trump's twitter account to test the question about how many takedown accusations it takes to violate Twitter's policy?
    Afterall, we all know that there are no penalties for claiming copyright on stuff you don't actually hold copyright over. Just look at the number of times you hear about a musician on YouTube being given a copyright strike for their own music.

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

    • icon
      Zane (profile), 23 Jul 2020 @ 2:44am

      Re: how long?

      It's considered perjury to claim copyright for something you don't have the rights for. So yes, there potentially there are real penalties. I'd have thought if there were a real issue Twitter or some other body would haul the false claims through the court to create an example. Your point about own musicians given strikes for their own content. It's likely they signed away their copyright.

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

    • icon
      PaulT (profile), 23 Jul 2020 @ 2:46am

      Re: how long?

      It's well documented that Trump gets special treatment due to all the free marketing he gives them. There was an experiment recently where someone set up an account, the only things that were tweeted were copy/pastes from Trump's account. It was quickly banned.

      He wildly violates Twitter's policy, but ultimately it's their discretion whether they enforce it equally.

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

  • icon
    Jeroen Hellingman (profile), 23 Jul 2020 @ 3:05am

    What I always wonder about is, why are such repeat infringement policies not written that you're account will only be terminated after you have repeatedly (lets say three times) convicted by an official court of copyright infringement using the platform's facilities. That would make platforms have a DMCA compliant policy, and solve the whole issue of mere accusations getting people kicked out. Of course platforms can still discretionary terminate accounts that are actually being used for blatant infringements. Of course, the DMCA still needs to be fixed, in that false accusations can actually lead to significant damages being due, but that is not something the platforms can do.

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

    • icon
      Stephen T. Stone (profile), 23 Jul 2020 @ 5:43am

      What I always wonder about is, why are such repeat infringement policies not written that you're account will only be terminated after you have repeatedly (lets say three times) convicted by an official court of copyright infringement using the platform's facilities.

      Because lawsuits.

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

    • icon
      That One Guy (profile), 23 Jul 2020 @ 9:20am

      Re:

      Because the people who use copyright as a bludgeon rarely want to take it to court for some mysterious reason(usually because their evidence is crap/missing or because they don't want to actually spend money and effort despite claiming violations are horrendously damaging to them), and therefore they prefer a system of 'accusation = guilt', which luckily for them copyright law is.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.