from the dmca-policy-made-by-feelz dept
On Monday, I saw Elon Musk tweet the following, and initially thought that he might have actually made a good policy decision for once, and planned to write up something about Elon doing something right (contrary to the opinion of some, I’m happy to give him credit when it’s due):
Punching back against DMCA abusers is a good policy (and one that the old Twitter was willing to go to court over — though very early Twitter was less good about it). So, in theory, suspending accounts of those who engage in “repeated, egregious weaponization” of the DMCA seems like a good policy and Musk should be given kudos if that’s how the policy is actually put into operation.
Though, the actual details here are kind of a mess, and it’s possible that instead of putting in place a good policy, Musk might have (instead!) opened up Twitter to potentially massive liability.
This came about over a dispute between two Twitter users, but the details are now gone, as Twitter suspended one account, and it appears the other account deleted all the tweets about this dispute (though I’ve been able to dig up a few screenshots).
One account, @Rainmaker1973, is one of thousands of aggregator accounts that basically find other people’s content and post a constant stream of it to their feed. Rainmaker has 1 million followers, so is a pretty large account. Looking over Rainmaker’s feed, you can see that the account links to source material (through tracked buff.ly links). When it’s posting videos, it appears to embed the original video, rather than re-uploading it, though the way Twitter handles that is sometimes a little confusing. It just puts a little “from @OriginalAccount” in small letters underneath the video, with a link to that account’s profile page, but not to the tweet where the original video was. I’ve never quite understood why Twitter handles video embeds this way, but it does. Here’s one example, with the Twitter-appended attribution highlighted:
For photos, that’s not how it works. You basically have to reuse the photos (and if they’re hosted somewhere else, upload them to Twitter). That’s what the Rainmaker account did here, with a photo that originated on Facebook:
Is that infringing? Eh… I’d say that the Rainmaker account has pretty strong fair use claims much of the time. The account also appears to lean towards public domain images (such as from NASA) and some Creative Commons-licensed images. But fair use is always fact-specific, so it’s difficult to say if none of the accounts tweets might violate copyright law.
What appears to have happened, based on what many others have written, is that the Rainmaker account posted a video from another account, @NightLights_AM, that specialized in images and videos of the northern lights. While these tweets have since been deleted, note that the video in the image does not show the little “from” line, as it would if it were embedded directly from Twitter.
Now, unfortunately, since it’s all deleted, we can’t see exactly how the video is embedded. Rainmaker says it’s embedded, not uploaded. It doesn’t have the “from” line at the bottom in that screenshot, but… it might still be from a Twitter embed, because Twitter (confusingly!) does not show that “from” line in the video if it’s being quote tweeted, as is the case here.
So, based on all that, there’s a decent chance that the DMCA notice was somewhat iffy. I recognize that lots of people don’t like aggregators like the Rainmaker account, but if he’s just using an existing upload from the official account as an embed, then it’s clearly not actually infringing.
It is quite possible, though, that most people don’t understand how video embeds of other Twitter videos work on Twitter (it’s confusing!), and so it wouldn’t surprise me if the NightLights account didn’t even realize it was an embed of the original, and out of frustrating of this large aggregator account getting all the traffic for its video, sent a good faith (but mistaken) DMCA notice.
In the now-deleted tweet you see above, the Rainmaker account says it reached out to the NightLights account, and NightLights asked for money (likely for a license). Again, assuming Rainmaker was just embedding, there is no need for a license. It’s literally just using Twitter in the way it was intended, and in a manner that NightLights already granted a license for. Somewhat confusingly, in a later tweet, the Rainmaker account claims that NightLights didn’t actually want money and instead said that NightLights was trying to shut down his account:
For what it’s worth, the guy behind NightLights told TorrentFreak that Rainmaker is misrepresenting their conversation, and that it was Rainmaker who first proposed paying, if NightLights would rescind the DMCA notice:
Mauduit informs TorrentFreak that after sending the DMCA notice to Twitter, Massimo initiated contact and suggested that he should pay an amount to have the report retracted “since the situation for him was so dire.”
Mauduit says that since the offer came Massimo, that doesn’t constitute blackmail. A few hours later Massimo accused Mauduit of blackmail on Twitter, Mauduit says.
“I asked him to compensate me fairly for the use of the material. So at that point, that was purely business related and politically correct,” Mauduit says.
Either way, Twitter’s head of trust and safety quickly told the Rainmaker account that, despite his fears, the company would not suspend his account:
This is also a good policy (so kudos to Irwin and Musk on continuing this aspect of old Twitter’s policies). She also noted in another tweet that the Rainmaker account “is not at any risk for suspension.”
Of course, “pirating / egregious illegal behavior” is somewhat in the eye of the beholder. And so is… “blackmail.” Yet, about an hour after Ella’s tweets, Musk himself noticed Rainmaker’s tweets and announced that he would “suspend” accounts for “blackmail.”
Again, in a vacuum, this could be good policy. Suspending egregious copyfraudsters who abuse copyright to shake people down or silence them makes sense. And DMCA abuse for extortionate behavior does happen unfortunately often. As does abusing the DMCA to silence others over non-infringing speech. We’ve covered many, many such cases over the years.
So, having a policy that pushes back on that abuse of copyright law is good —and another nice thing you can say about Elon Musk is that he’s been quite good about recognizing the problems associated with patent and copyright law. Other companies have pushed back on copyright abuses as well, such as how Automattic (the company behind WordPress, and also the company that hosts Techdirt) has spent years fighting back against DMCA abusers. But it has a clear process for doing so, rather than the whims of an impulsive owner.
In this case, though, Elon appeared to take Rainmaker’s (slightly confused) word for what happened, and flat out suspended (temporarily) NightLights for what appears to have been a good faith DMCA notice, followed by a discussion initiated by Rainmaker regarding payment.
As I was finishing up this article, the NightLights account was actually reinstated, though the guy says he’s now considering leaving the platform:
So, given all this, the concept behind the policy is good, but there’s not much evidence that NightLights was actually actually “blackmailing” Rainmaker. From what was public (and mostly now deleted), it looks more like the account mistakenly thought that its content was used in an infringing manner due, in part, to Twitter’s own confusing presentation of embedded videos, and filed a good faith, but mistaken, DMCA notice. When Rainmaker contacted NightLights to try to get the DMCA strike removed (out of a fear that it would take down the account), the began a discussion on a licensing fee, which again seems reasonable if NightLights actually thought the use was infringing.
Also, this seems to have no angered others who were fans of the NightLights account:
Once again, content moderation at scale is impossible to do well because people are going to be mad at you on both sides of the equation.
In the end, this looks like a lot of miscommunication across the board, in part from people who aren’t fully aware of how Twitter or copyright law actually work. The end policy — don’t put up with shit from those who abuse the DMCA process — is actually great. But it really doesn’t look like NightLights was abusing the DMCA, just confused about how Twitter worked.
And because of the somewhat less-than-well-considered way in which Twitter under Elon is acting, if NightLights had a legitimate claim (and again, I don’t think it does in this case), quickly suspending an account for filing a real DMCA claim could open up Elon and Twitter to pretty significant liability. Contrary to popular belief, companies that receive a DMCA notice do not need to take down the content. But if they don’t, they can no longer use the DMCA’s 512(c) safe harbor, which is a risk if the case went to court. So refusing to take down something upon notice is a legal risk, and the kind of thing a large company like Twitter would normally have a copyright lawyer review.
The other potential issue is that if Twitter makes it a habit to suspend accounts that send good faith or legitimate DMCA notices, it could very much open them up to claims that they do not have a valid “repeat infringer” policy, as required by 512(i). Suspending one account for sending a good faith DMCA almost certainly won’t trigger that issue, but having Elon flat out say that Rainmaker’s account “won’t be” suspended could be read to mean that Twitter is ignoring its repeat infringer policy with regards to at least that account. And, I could see copyright lawyers trying to argue that this is an example of how Musk is willing to ditch the 512(i) policy for accounts he likes. At the very least, you can bet that these kinds of impulsive policy decisions will be used in court by copyright litigants. Perhaps from Hollywood studios who noticed that, last fall, amidst all the turmoil, Elon’s Twitter seemed to be ignoring many DMCA notices about accounts posting entire Hollywood movies.
In short, impulsive decisions around DMCA policy, made without first going over things with an actual copyright lawyer, can open up a company like Twitter to quite a bit of liability. But this is the Elon Era, in which YOLO seems to be the general ethos, and if it happens to add to yet more legal liability? Well, just toss it on the pile.