The copyright system is flawed at many levels, as hundreds of posts on this blog make clear. One particular class of problems concern takedowns. The best known of the ‘notice and takedown’ systems, that of the US Digital Millennium Copyright Act (DMCA), allows the copyright industry to send takedown notices when they discover infringements on a site to the relevant Internet companies, asking for removal of that material. The person who uploaded the relevant files can send a counter-notice. Such a response may trigger a lawsuit from the company claiming copyright. If it does not, the site owner may restore the material that was taken down.
That might look like a fair and balanced system, but appearances are deceptive here, for reasons Walled Culture the book (free digital versions available) explores in detail. Takedown notices are generally sent by lawyers or specialists who carry out this operation all the time, often thousands of times a day, using automated systems (Google has received billions of such automated requests). These experts know the details of the law and are only required to provide a statement that they have a ‘good faith belief’ that the use of the copyright material is unauthorized.
By contrast, recipients of takedown notices are often small businesses, or ordinary members of the public. They are unlikely to have any legal training yet must respond to a formal legal notification if they wish to send a counter-notice. The latter must include a statement ‘under penalty of perjury’ that the material was taken down by mistake. Many will quail at the thought that they risk being convicted of perjury, and this stands in stark contrast to the mere ‘good faith belief’ required from the sender of a takedown request. Consequently, most people will simply accept that their material is removed, even if it was legal, for instance under fair use.
Takedown notices can be abused for purposes that have nothing to do with copyright. For example, they are a handy way to censor perfectly legitimate online material. The practice has become so common that an entire industry sector – reputation management – has evolved to take advantage of this trick. Online reputation management companies often use takedown notices as a way of intimidating sites in order to persuade them to remove material that is inconvenient for their clients.
Takedowns can also be mis-used in a business context, as a story on TorrentFreak indicates. It concerns the Canadian e-commerce platform Shopify, some of whose users had been targeted with takedown notices:
Starting on October 5, an unknown person created the account “Sacha Go” which was subsequently used to file dozens of DMCA takedown requests. The notices targeted listings on a variety of shops selling perfume products, claiming that they infringe copyright.
After being alerted by one of the targeted merchants Shopify looked into the matter, concluding that all takedowns were false. Instead of containing legitimate claims the DMCA notices were being used to harass Shopify and its merchants.
Under certain circumstances, a takedown notice can even result in the complete termination of a merchant’s online store. Like all DMCA service providers, Shopify is required to implement a policy under which those who are “Repeat Infringers” lose access to the platform. Under Shopify’s policy, a takedown notice results in a “strike,” and an accumulation of strikes over time results in termination. A merchant that receives a takedown notice may submit a counter notice and lift the strike. But for unsuspecting merchants who may be unfamiliar with the DMCA, a sudden onslaught of takedown notices can result in the termination of their entire store under Shopify’s repeat infringer policy.
Shopify’s complaint warns that “unscrupulous individuals are increasingly seeking to exploit the DMCA takedown process for anti-competitive purposes or reasons of animus.” In other words, these takedown notices have nothing to do with copyright or protecting the rights of creators.
The experience of Shopify and its merchants demonstrate well how extreme copyright laws can be abused in far-reaching ways. Those future issues clearly never occurred to the politicians who were too focused on giving the copyright industry yet more one-sided legal powers when they drew up the DMCA.
Last year, we wrote about the really bizarre case of a website called “Business Casual” that filed a couple of copyright infringement lawsuits. One was against TV-Novosti, the Russian state-owned news organization that runs RT (formerly Russia Today). While there was a brief period of time in which RT pretended that it wanted to be a respected global news brand a la the BBC, it didn’t take long before it became a propaganda arm for Vladimir Putin.
Business Casual claimed that RT’s Arabic channel had pulled some clips from some of Business Casual’s videos that were potentially infringing. The case had a bunch of twists, including that many of the images were based on public domain images, but which Business Casual had modified using what it refers to as its “parallax” technology to take static images and give them a 3D feel. Whether or not there was a fair use argument (or a lack of copyright on the images argument) to be made didn’t much matter, because after initially responding to the lawsuit, TV-Novosti eventually just decided to ignore the case, leading to a default judgment.
After the default judgment there was another bit of a twist in the case, in which a Moscow-based executive from TV-Novosti sent a letter to the court asking the court to appoint an attorney to represent TV-Novosti, noting that because of various EU and US sanctions against Russia due to the Ukraine invasion, no banks will work with TV-Novosti, and thus it cannot figure out how to pay a US lawyer to represent it in court. The company says it needs a lawyer because it knows that corporations cannot appear pro se, and thus asks the court to appoint one for it.
The court’s response was that TV-Novosti is correct that it cannot represent itself in court, and notes that the letter requesting an appointed counsel was… the company representing itself in court, and therefore even that request for counsel got stricken from the docket, since there was no authority to file it. The court did suggest that TV-Novosti could reach out to the NY Legal Assistance Group to see if it would provide counsel, but no lawyer ever showed up, and thus the default judgment stood and the case was closed.
No matter how strong the argument may have been in that case, the second case that Business Casual filed was just dumb. It also sued YouTube, basically arguing that in allowing RT Arabic to infringe on Business Casual’s copyright (already potentially questionable), YouTube was itself infringing on Business Casual’s copyright.
And, again, things got weird in the case. Business Casual’s lawyer kept filing for extensions, claiming that the owner/operator of Business Casual, Alex Edson, was dealing with “severe” health problems and was “in agonizing pain and cannot function.” Yet, just as Business Casual’s lawyer was saying that to the court, Edson was in the process of releasing a nearly two hour long overly dramatic video (complete with a Putin impersonator explaining copyright law badly) about how YouTube’s lawyers were liars and the failure to take down the RT-Arabic account was because YouTube was an anti-American company.
Anyway, the court tossed out the lawsuit against YouTube, noting that nothing YouTube did violated copyright law.
Business Casual appealed, and now the 2nd Circuit Appeals Court has upheld the lower court ruling with a summary order (basically “this is such a waste of our time, we’re not even going to write a real opinion”) that is just a few pages saying “everything about this case is stupid, the lower court got it right, why are you bothering us?”
It affirms the lack of contributory or vicarious copyright infringement by YouTube, which is standard fare. Indeed, the order notes that Business Casual’s own filings seem to admit the basic facts that show that YouTube was neither contributorily or vicariously liable:
Rather, the amended complaint states that TV-Novosti took active steps to conceal its infringement by removing Business Casual’s watermark from the images in question, replacing it with its own watermark, and removing the color from Business Casual’s videos. According to the amended complaint, these steps by TV-Novosti allowed it to “evade detection from YouTube’s copyright-detection technology.” App’x at 299. Moreover, the amended complaint established that YouTube promptly removed the three videos at issue from its platform once it became aware of the alleged infringement, and these videos remain unavailable.
Business Casual’s own allegations reveal that YouTube did not materially contribute to, but rather acted to remedy, TV-Novosti’s infringement. Apparently recognizing that these allegations undermine a plausible claim, Business Casual concedes in its brief that its claims “do not arise from a failure by YouTube to detect, prevent, or acknowledge the infringement” by TVNovosti and are, thus, “[u]nlike typical cases involving secondary infringement.”
So having admitted in its own pleadings that YouTube couldn’t actually be liable for copyright infringement, the entire case hinged on the idea that YouTube was liable for not banning the RT-Arabic YouTube account under its repeat infringer policies.
But, this is… not how the DMCA works. As the district court initially explained (and which Business Casual’s lawyer seemed not to understand), the DMCA’s requirement for a repeat infringer policy is just part of the requirements for being eligible for the DMCA’s safe harbors, and does not create its own cause of action. But, Business Casual appealed that decision, and the 2nd Circuit points out that, no, the lower court was exactly correct:
Business Casual devotes much of its brief to arguing that YouTube’s failure to terminate TV-Novosti’s channels after it received three notices of infringing conduct is inconsistent with YouTube’s Repeat Infringer Policy. Business Casual argues that YouTube’s inconsistent practices should “result in the withdrawal of safe harbor protection” under the DMCA. Appellant’s Br. at 18. However, we agree with the district court that Business Casual’s attempt to assert an independent claim against YouTube based on its alleged failure to consistently apply its Repeat Infringer Policy is entirely misplaced.
The DMCA safe harbor provision that Business Casual relies on is an affirmative defense that a defendant may assert when a plaintiff sufficiently alleges a viable claim of prima facie copyright infringement. See 17 U.S.C. § 512(l) (“The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.”); see also Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 94 (2d Cir. 2016) (“[T]he safe harbor is properly seen as an affirmative defense, and therefore must be raised by the defendant.”); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th Cir. 2004) (“[T]he DMCA is irrelevant to determining what constitutes a prima facie case of copyright infringement.”). In other words, there is no affirmative cause of action for any alleged failure by YouTube to apply its Repeat Infringer Policy in accordance with the DMCA’s safe harbor provisions. As discussed above, Business Casual has not sufficiently alleged a plausible claim for contributory or vicarious copyright infringement. Thus, the district court properly determined that it need not reach the applicability of the “safe harbor” affirmative defense under the DMCA.
And thus, YouTube’s win over Business Casual is affirmed. I await the two hour YouTube video from Business Casual (perhaps they can bring back the Putin impersonator) mis-explaining the DMCA, and claiming that the panel of judges on the 2nd Circuit are anti-American.
To be honest, I’m somewhat amazed that more copyright lawsuits haven’t been filed against Twitter yet. There have been multiple reports of how the company’s DMCA takedown response systems have been broken/ignored since Musk took over. Without looking for it, I’ve seen full length high def movies show up in my Twitter feed (including movies still in theaters).
Still, it’s a bit surprising that the first such lawsuit is not from a Hollywood studio, but rather a big giant list of music publishers. And I’m pretty sure that Twitter has a strong case, if Elon bothers to hire competent copyright attorneys.
The backstory here is that music publishers (who are different than the record labels, even if some are connected to labels) have been demanding that Twitter license content for years. And, for years, Twitter correctly pointed out that it abides by the DMCA, and takes down copyright-infringing works when it receives a proper takedown notice. This is exactly what the law allows them to do, and it’s not as if Twitter is where people go to listen to music (and what music does get posted is generally hosted elsewhere and posted in a promotional manner). So, really, the idea that Twitter had to get a license from the publishers was always a stretch.
Still, almost immediately after Elon announced his bid for Twitter, the music publishers started agitating for him to license compositions. But, this is Elon Musk we’re talking about. The man won’t even pay his rent, or his cloud computing bills. Did anyone actually think he would pay for publisher licenses he doesn’t even need? So, it was little surprise when there were reports earlier this year that the talks had “stalled.”
And now there’s a lawsuit. But it doesn’t seem like a particularly strong one:
This is a civil action seeking damages and injunctive relief for Twitter’s willful copyright infringement. Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law. While numerous Twitter competitors recognize the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement that harms music creators.
I mean, first of all… what? I’ve been an avid Twitter users from 2008 through 2022 and I honestly can’t recall ever encountering music in any significant way, or if I did, it was links to licensed sources such as Spotify, Apple Music, YouTube or whatever.
The only reason to do such a license is if you’re actually hosting music (and even then the DMCA should protect you, but most sites choose to get a license mainly to get the industry to stop constantly screaming at them and so that they don’t have to constantly play DMCA takedown whac-a-mole).
And, some of this is just nonsense:
Twitter knows perfectly well that neither it nor users of the Twitter platform have secured licenses for the rampant use of music being made on its platform as complained of herein. Nonetheless, in connection with its highly interactive platform, Twitter consistently and knowingly hosts and streams infringing copies of musical compositions, including ones uploaded by or streamed to Tennessee residents and including specific infringing material that Twitter knows is infringing. Twitter also routinely continues to provide specific known repeat infringers with use of the Twitter platform, which they use for more infringement.
The standard here has to be specific, actual knowledge of infringing works, not general knowledge that some people on the platform sometimes post infringing works. And while the paragraph above alleges “specific infringing material that Twitter knows is infringing,” it’s not actually that simple. That’s the same sort of argument that Viacom made against YouTube and failed with. In that case, Viacom also insisted that YouTube had to know these works were infringing and the court said that’s not how it works. And it’s even more limited in this case because the publishers say that Twitter “knows” that its “users” have not secured licenses, but does not suggest how they know this at all. It’s entirely possible that some of the users have, in fact, secured licenses. Or, as noted, that they’re just posting videos from elsewhere that is licensed. The publishers know this, so this is just misleading nonsense.
Twitter profits handsomely from its infringement of Publishers’ repertoires of musical compositions. The audio and audio-visual recordings embodying those compositions attract and retain users (both account holders and visitors) and drive engagement, thereby furthering Twitter’s lucrative advertising business and other revenue streams.
I doubt this very much. First, again, who goes to Twitter for the music? Second, (also, again) the vast majority of music is linked to on other sites, not hosted by Twitter. Yes, Twitter hosts some video, and yes, Elon expanded how much can be posted, but it’s still a stretch to argue that Twitter is “profiting” from music on its platform.
This is just typical National Music Publishers Association (NMPA) nonsense, in which they falsely insist that no one does anything for any reason except to seek out their music, and that they should be paid for every listen.
Still, there are some things in here that suggest that Musk, in ways that only an incompetent Musk would do, has made his own situation worse. The key bits:
Twitter has repeatedly failed to take the most basic step of expeditiously removing, or disabling access to, the infringing material identified by the infringement notices. Twitter has also continued to assist known repeat infringers with their infringement. Those repeat offenders do not face a realistic threat of Twitter terminating their accounts and thus the cycle of infringement continues across the Twitter platform.
If that’s actually what’s happening, then that would be problematic. The complaint does point to an example of “a known repeat infringer” which at least raises some questions:
The screenshot below illustrates Twitter’s monetization of infringing content. This infringing tweet is from a known repeat infringer who has been the subject of at least nine infringement notices to Twitter, identifying at least fourteen infringing tweets, which contained unauthorized copies of Publishers’ musical compositions. Directly below the infringing tweet is a paid “Promoted” tweet selected by Twitter. To the right of the infringing tweet is a paid “Promoted” account recommended by Twitter. Twitter’s account recommendations also include another known repeat infringer, Twitter Account A, identified in paragraph 166 below.
I’m at least a little confused by this. From what I see there, it’s not at all clear that the original tweet is hosted audio. It’s possible, but normally when there’s a video player it shows with the indicators of a video player. And, honestly, the fact that there are other promoted tweets or recommendations is mostly meaningless for the copyright issues at play.
As for the repeat infringer question, the DMCA requires that companies have a “reasonably implemented” repeat infringer policy, but does not specify exactly how it works, so just claiming that there are repeat infringers on the site, without more info, does not prove that Twitter would be liable for infringement (it could be, I’m just noting that the complaint is pretty weak on this point). The legal battles around this are always about whether or not a particular policy is reasonably implemented, and without more info it’s difficult to know if Twitter’s would be.
Later in the lawsuit there are lots of complaints about how long it takes Twitter to review DMCA takedowns, which might be indicative of a real problem… but might not be:
The precise extent of Twitter’s lengthy delays will be the subject of discovery and analysis, including through a review of Twitter’s records. In the meantime, by way of an example, the musical composition “What a Wonderful World,” written by Bob Thiele and George David Weiss and performed by Louis Armstrong, is a timeless classic, chosen by Rolling Stone in September 2021 as one of the top 200 songs of all time. Unauthorized audio and audio-visual recordings that embody “What a Wonderful World” are rampant on the Twitter platform, and Twitter has failed repeatedly to take them down in an expeditious manner. Across all the NMPA Notices sent to Twitter that identified the musical composition for “What a Wonderful World” by name, along with precise URLs for the tweets containing the infringing uses of that composition, Twitter failed to take down at least 240 infringing tweets incorporating “What a Wonderful World” within 14 days after the NMPA Notice was sent. Even more troubling, over 120 of those tweets were still available at least a month after the associated NMPA notice was sent to Twitter, and more than two dozen tweets were still available on Twitter over two months after NMPA sent a notice identifying them as infringing.
Seems like an odd choice to use, as an example, a song that is literally 56 years old, which at the time it was published had a maximum copyright term of 56 years? Yes, the song is still under copyright thanks to endless copyright term extensions, but… still. You’d think they’d pick another song.
Also, the lawsuit misrepresents Twitter’s marketing claims about Twitter and music, which tend to be about communities of fans, not posting actual music (again, that’s not really a Twitter thing).
Twitter has been outspoken about how important music is to Twitter and users of its platform. In its marketing, blogs, or tweets, Twitter stated:
a. “[M]usic is the largest community” on Twitter’s platform, where “people are more likely to follow a music-related account than any other type of account on Twitter.”
b. The Twitter platform is “the ultimate connection to the music world for fans and brands.”
c. “Every day, more than 30 million tweets are published about music around the world . . . [which is] more than 20,000 every minute.”
Twitter even has its own “@TwitterMusic” account on its platform dedicated to top music trends, which has a massive following of 11.5 million users
I mean, literally none of that has anything to do with infringing content. It’s mostly about music fans and connecting with artists. Not listening to music on the platform. It’s just designed to sound bad, despite being wholly unrelated to the actual copyright question.
Now, there are some things that Elon has done that may cause him trouble in court. Recently departed trust & safety boss Ella Irwin (stupidly) announced that the company wouldn’t suspend users unless “it is clear the user knew the content was illegal.”
While that may seem commendable in some ways, it might conflict with the DMCA’s requirements regarding repeat infringer policies. At least, the NMPA sure claims it does:
Twitter has told users of its platform that “[w]e don’t suspend users for posting reported content unless it is clear that the user knew the content was illegal.” But Twitter’s practice is unreasonable and contrary to law. Infringement occurs as a matter of law. Direct infringement is a strict liability offense, without any requirement that the infringer know the content they post is illegal.
Except… that’s not entirely accurate by the NMPA either. While the courts have definitely moved in that direction, some still do recognize the concept of innocent infringement (and, frankly, copyright law would be a lot more reasonable if the courts went back to understanding this).
There are other Elon decisions that the complaint calls out, but some are silly and have nothing to do with the copyright questions:
Instead of grounding decisions on sound policy development and reasonable implementation, Twitter has outsourced trust and safety decisions to Twitter polls, i.e., votes among users of the Twitter platform, through a feature on the platform used for polling.
But… there is another thing the lawsuit calls out which MANY copyright lawyers freaked out about last month, when a Twitter user appeared to complain that they were being unfairly hit with copyright claims and Elon told the user to try “turning on subscriptions.”
I saw multiple copyright lawyers freak out about this and try to warn Musk that this tweet would show up in copyright lawsuits. At the time, I looked into the issue and… while it looks bad, it’s not as bad as it seems. The “Figen” account does not appear to actually be infringing on copyrights. It actually is linking to the original uploads by the original users (those might be infringing, but most did appear to be from the original creator of the work). This is a confusing bit of how Twitter works, when you can “repost” someone else’s video, but you’re really just linking to their upload.
Still, this incident shows up in the lawsuit (somewhat obliquely):
By way of another example, a user tweeted that Twitter should not suspend accounts for receiving multiple copyright notices but rather should only disable the copyrighted videos. That user asserted that the user does not earn money from the videos they share, or understand that they are copyrighted, and that copyright owners should ask Twitter users to remove the videos rather than submit notices to Twitter. Twitter replied publicly to this user, but without asking the user not to infringe, without referring the user to Twitter’s Copyright policy, and without telling the user that copyright infringement is unlawful regardless of whether the user makes money from it or realizes that a particular video is infringing. Instead, Twitter suggested that the user “consider turning on subscriptions”—a feature of Twitter Blue that garners revenue for Twitter, enables the user to receive payments from other users of the Twitter platform, and, because the infringing tweets are behind a paywall, makes it more difficult for copyright owners to find.
So, this one goes both ways. If you understand that Figen wasn’t actually infringing, then Elon’s statement isn’t so bad. But it’s not even clear that Elon realized this user wasn’t actually infringing. And if he did believe the account was infringing then… yeah… that’s bad. But, also, it’s not at all a surprise this showed up in a lawsuit.
And then there’s this:
I mean, this is another case where Elon is correct, but that plays badly if you’re in a lawsuit for ignoring DMCA takedowns, and of course the NMPA calls it out.
Twitter’s most senior executive has previously described the Digital Millennium Copyright Act (“DMCA”)—a statute that, among other things, provides for notice and takedown of infringing copyrighted material—as a “plague on humanity.”… This statement and others like it exert pressure on Twitter employees, including those in its trust and safety team, on issues relating to copyright and infringement.
So, anyway, this is not a particularly strong lawsuit, but it’s not a joke either. It’s got many aspects where Elon and his inability to shut the fuck up clearly made things worse. But it does seem like the kind of copyright lawsuit that Twitter could win if it had competent copyright litigators to handle it.
Which means, the question is: can Elon actually hire a competent copyright litigator these days?
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.
You may recall that, back in August, we wrote about the bizarre situation of a company called “Business Casual” and its CEO, Alex Edson. Business Casual makes highly produced videos. It made a few on historical topics, including taking some public domain images and modifying them significantly to make “paralax images” that added a sort of 3D feel. Edson/Business Casual claim (credibly!) that RT Arabic, the Arabic language wing of Russia Today, owned by TV-Novosti, copied parts of some of their videos. There were some DMCA claims he filed and then a lawsuit against TV-Novosti.
All that is… perfectly reasonable?
But then, for unclear reasons, Edson decided to sue YouTube/Google as well, claiming direct infringement among other things. That lawsuit did not go well. Not well at all.
It got much more bizarre over the summer, because Edson’s lawyer, Ron Coleman (who these days seems to specialize in fighting ridiculously bad culture war lawsuits which have no chance of success) kept filing for delays on filing for permission to file an amended complaint, saying that Edson was dealing with debilitating health problems. But… the very day that he filed the third such “Edson’s ill, we need more time,” motion (directly stating that Edson “is in agonizing pain and cannot function at this time“), a very healthy looking Edson was releasing a two hour long video on YouTube (complete with a very bad Putin impersonator) explaining — poorly — some details of copyright law, and claiming that YouTube is an “anti-American” company. He also claims, in truly dramatic fashion, that YouTube’s lawyers are “pathological liars” among other things.
While YouTube’s lawyers alerted the judge to this video, the judge ignored it and still granted the extension. Coleman eventually got around to submitting the actual filing. And, right before Thanksgiving the judge ruled on it — again highlighting how truly bad the legal arguments being made are.
First, Edson/Business Casual argue that YouTube failed to apply its “repeat infringer” policy to TV-Novosti by not suspending the account (or rather, suspending it only briefly). But, as the judge notes, the DMCA’s repeat infringer policy requirement (DMCA 512(i)), are only about whether or not a website is eligible for the DMCA’s safe harbors. It’s not its very own cause of action. But Coleman seems to think it is. The judge disabuses him of this:
Plainly, the plaintiff here is attempting to assert an
independent claim against YouTube for its alleged failure to
discontinue TV-Novosti’s account in accordance with its Repeat
Infringer Policy. Lest there be any doubt on this point, the
plaintiff asserts in its motion papers that YouTube’s failure to
“terminate the accounts of repeat infringers . is why we are
here.” Pl.’s Reply at 1. But as this Court already made clear,
Business Casual “misconstrues the safe harbor provisions of the
DMCA and how [those provisions] interact with the other federal
copyright laws.” First Opinion, 2022 WL 837596, at *5. The DMCA
does not establish an affirmative cause of action. Rather, the
DMCA provides internet service providers (“ISPs”) with potential
“safe harbor” defenses that will shield ISPs from liability for
copyright infringement so long as certain statutory criteria,
including the maintenance of a policy for terminating “repeat
infringers,” are met. See Arista Records LLC v. Usenet.com,
Inc., No. 07-cv-8822, 2008 WL 4974823, at *4 (S.D.N.Y. Nov. 24,
2008); Martin v. Tumblr, Inc., No. 15-cv-8338, 2017 WL 11665339,
at *4 (S.D.N.Y. Feb. 10, 2017) (DMCA provision “does not create
a right of action, but rather creates a defense to liability, or
safe harbor”); see also 17 U.S.C. § 512(i)(l)(A) (an ISP will
qualify for the “limitations on liability established by this
section . only if the [ISP] . has adopted and reasonably
implemented” a “policy that provides for the termination” of
“repeat infringers”). Put differently, an ISP’s compliance with
the DMCA’s safe harbor provisions does not come into play until
a plaintiff pleads a viable copyright infringement claim against
the ISP in the first instance, at which point, the ISP may
assert its eligibility for a safe harbor as a defense to
liability. See Arista Records, 2008 WL 4974823, at *4 (DMCA’s
“limitations of liability apply if the provider is found to be
already liable under existing principles of law”).
In short, Business Casual cannot transform the DMCA’s
prerequisites for a safe harbor defense into the basis for an
affirmative claim against YouTube. That is not how the statute
was written, and it is not for the Court to permit a cause of
action that Congress did not create. The allegations concerning
YouTube’s failure to terminate TV-Novosti’s channels would be
relevant here only if the plaintiff had first pleaded a
plausible claim for copyright infringement, thereby shifting the
burden to YouTube to establish its entitlement to a DMCA safe
harbor defense.
But… therein lies a problem. Because there is no plausible claim of liability for YouTube. There may well be a plausible claim against TV-Novosti, but that doesn’t magically make YouTube liable as well. Indeed, this case is complicated by the fact that Business Casual uploads its videos to YouTube granting YouTube a license to them. That doesn’t mean that TV-Novosti gets a license, but it does mean that suing YouTube for infringement (especially direct infringement) makes no sense, as it already has a license to the work, and therefore cannot be infringing:
In any event, the plaintiff’s Amended Complaint fails to
state a claim for direct copyright infringement because it is
devoid of allegations casting doubt on the existence, validity,
or enforceability of the License. As noted in the First Opinion,
“it is a hallmark principle of copyright law that licensors may
not sue their licensees for copyright infringement,” Jasper v.
Sony Music Ent., Inc., 378 F. Supp. 2d 334, 339 (S.D.N.Y. 2005),
and here, Business Casual granted to YouTube a broad License to
“use,” “reproduce, distribute, prepare derivative works [from],
display, and perform” the content in Business Casual’s YouTube
videos, see First Opinion, 2022 WL 837596, at *5. Accordingly,
under the plain language of the License, Business Casual cannot
hold YouTube directly liable for hosting or displaying video
content that Business Casual has uploaded to YouTube’s platform.
That would include the hosting or displaying of the copyrighted
video segments that appeared on TV-Novosti’s YouTube channel,
because Business Casual had authorized YouTube to display those
segments when it uploaded the Rockefeller and J.P. Morgan Videos
to YouTube.
Business Casual tried to argue that nothing in the license allowed YouTube to then license that work to TV-Novosti, but as the judge explains, that’s not how any of this works.
But this argument misunderstands the
import of the License and the nature of YouTube’s license
defense. The relevant question here is not whether YouTube was
entitled to authorize TV-Novosti’s use of Business Casual’s
copyrighted video content. Rather, the question is whether
YouTube’s use of the plaintiff’s content — here, the display of
copyrighted video segments that Business Casual had previously
uploaded to YouTube — fell within YouTube’s broad rights as the
licensee of the plaintiff’s YouTube videos. As discussed above,
the License does cover that use.
What about contributory or vicarious infringement? No, those don’t fly either. Those things require at least some level of knowledge or profiting off of the infringement by YouTube, which is not shown at all.
Like the Original Complaint, the Amended Complaint contains
no allegation that YouTube knew of the allegedly infringing TVNovosti videos before Business Casual lodged its DMCA takedown
notices. To the contrary, the Amended Complaint alleges that TVNovosti manipulated the video content for the precise purpose of
evading YouTube’s detection. Moreover, because YouTube promptly
and permanently removed the First, Second, and Third RT Videos
from its platform once it received the plaintiff’s DMCA notices,
the Amended Complaint does not permit an inference that YouTube
acted in concert with TV-Novosti.
The Amended Complaint also fails to state a claim for
vicarious infringement. To hold a defendant vicariously liable
for another party’s infringing act, a plaintiff must allege
plausibly that the defendant “profit[ed] from [the] direct
infringement while declining to exercise a right to stop or
limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 930 (2005). In this case, the plaintiff’s
allegations foreclose an inference that YouTube declined to
exercise its right to stop TV-Novosti’s alleged infringement.
To the contrary, the allegations indicate that YouTube removed
the First, Second, and Third RT Videos, and thereby stopped the
alleged infringement, shortly after Business Casual notified
YouTube of its copyright concerns.
One other point that the Business Casual complaint kept making is that it took YouTube 23 days to remove one of the videos after receiving one of its DMCA takedown notices. This is used to argue that YouTube wasn’t expeditiously removing infringing works. But, this is presented out of context. As the judge makes clear:
Finally, the Amended Complaint takes issue with the fact
that YouTube removed the Second RT Video 23 days after receiving
the plaintiff’s second DMCA notice. To the extent the plaintiff
intends to suggest that the length of this 23-day period renders
YouTube secondarily liable for TV-Novosti’s infringement, such
an argument is meritless. As before, Business Casual “has not
pointed to any authority” suggesting that YouTube was obligated
to investigate Business Casual’s complaint on “a more compressed
timeline.” First Opinion, 2022 WL 837596, at *4. Moreover, the
new allegations in the Amended Complaint indicate that YouTube
spent the 23-day period actively communicating with Business
Casual and evaluating the alleged infringement, see Am. Compl.
tt 118-119, 123-126, foreclosing any inference that YouTube
simply sat back and allowed the alleged infringement to occur.
Accordingly, the purported delay in YouTube’s removal of the
Second RT Video does not support a contributory or vicarious
infringement claim against YouTube.
In other words, while it did take 23 days, much of that was spent with YouTube communicating back and forth with Business Casual to make sure the work was actually infringing. That’s not ignoring infringement, it’s making sure that it’s not incorrectly taking down non-infringing videos.
Of course, Business Casual immediately appealed, and copyright cases can be a bit of a crapshoot in the appeals court, including the 2nd Circuit. But this seems like a fairly slam dunk bullshit case by someone who does not appear to understand the fundamentals of copyright law, but seems more focused on creating a stupid culture war by misstating how copyright works.
There are a bunch of moving parts involved in this case that I really wasn’t planning on covering — but something quite amusing happened and I can’t resist. The basics are fairly straightforward: there’s an outfit named “Business Casual” that makes videos, apparently sometimes discussing historical events and whatnot. One part of the videos is that they create “parallax” images, in which they take apart old public domain photos and give them a sort of 3D feel (sometimes creating new images entirely). RT Arabic (the Arabic language wing of RT — i.e., Russia Today — owned by the state funded TV-Novosti) apparently used some snippets of these parallax images from a couple of Business Casual videos. Business Casual filed DMCA takedowns, causing the RT Arabic channel to get some copyright strikes, and even had the account briefly taken down, though it was then reinstated.
There are a bunch of nitty gritty details that aren’t worth going into, but RT Arabic counternoticed the DMCA takedowns, claiming fair use (and without going into the details, in at least some of the cases, they seem to have a fairly credible fair use claim, but I wouldn’t call it a slam dunk). Under the DMCA, once someone files a counternotice, YouTube will generally repost the videos (and remove the strikes) if the copyright holder doesn’t sue within 10 days. Business Casual found a copyright lawyer and sued TV-Novosti for copyright infringement.
That’s all normal enough. But, a month and a half later, the company alsosued YouTube itself, arguing that YouTube directly infringed its copyrights as well. That seems like a questionable move for a whole variety of reasons.
The case against TV-Novosti has continued, with the judge basically not being impressed by the fair use arguments. I think a stronger fair use argument was there than the judge allowed, but as I noted, it’s not a slam dunk and the ruling seems perfectly fine. For what it’s worth, both sides then had their lawyers withdraw. Business Casual replaced its lawyer with Ron Coleman, who many, many years ago did some useful and impressive work on free speech, but went deep into Trump cultist territory and is now mostly known for filing nonsense, anti-speech, culture war bullshit. TV-Novosti appears to have replaced its lawyers with… no one? And decided to just start ignoring the case, leading Business Casual to seek a default judgment, which it seems likely to get. That’s all fair enough.
The case against YouTube, as expected, went nowhere. The judge dismissed it pretty easily. Even if TV-Novosti was infringing, the idea that YouTube was a direct infringer is nonsense. Professor Eric Goldman had a writeup of the ruling back in March. There were some oddities in the ruling, but it was clearly correct on the law. Once again, after this ruling, the company’s lawyer withdrew (suggesting a disagreement over strategy) and was replaced with Coleman.
Business Casual / Coleman then repeatedly asked the court for extensions in order to file an amended complaint. Coleman mentioned in some of these letters that the main reason for the extension request was “because the health of the plaintiff’s principal, Mr. Edson.” The most recent such request came on August 16th, with Coleman noting:
The reason for this request, as well as its belated timing, is the deteriorating health of my
client.
Mr. Edson, Plaintiff’s principal, suffers from severe bilateral tinnitus, a condition that
causes extremely loud and constant ringing in the ears. He is in agonizing pain and cannot function
at this time. I expected to receive my client’s feedback and approval on the reply submission at the
end of last week, but he simply has been unable to operate.
Anyway, something else happened on August 16th.
That is, on August 16th, the same day his lawyer was telling the court that Edson “cannot function at this time,” Edson had posted a nearly two hour long, highly produced video on YouTube all about the case, complete with (I shit you not) a Vladimir Putin lookalike trying (poorly and inaccurately) to explain copyright law. Most of the video is a very healthy looking Edson, complete with very dramatic concerned looks, spewing a very passionate, but dubious, explanation of the case. If you wish to submit yourself to torture you can watch the whole video. I did. Edson makes a very emphatic case for his very, very misinformed beliefs about (1) copyright law (2) YouTube deliberately colluding with Russia and… some other nonsense, including that “YouTube is not an American company” because it doesn’t “stand for American values.” Almost everything in the video is, at best, extremely confused about the nature of copyright law. Multiple times while watching the video I had to mutter “that’s not how any of this works.”
Just for example, at one point, he notes that he emailed YouTube execs directly, after his case was happening. YouTube execs, quite correctly, noted that since he was currently a party in a lawsuit against them, he had to only talk via their lawyers, and not try to communicate directly. That’s, uh, kinda basic stuff — but he tries to suggest it’s all an example of how evil Google is.
Also, he attacks the very correct argument that YouTube made as part of its response to his lawsuit: that his demand that they takedown entire channels, full of non-infringing works, raises serious 1st Amendment issues. It does. I mean, there’s a whole big important Supreme Court case all about that fact. But Edson acts as if this is crazy talk. He’s wrong.
He’s also very confused about the reasoning behind YouTube’s defense, which in part notes that under the DMCA it wants to see cases where there are credible fair use claims fully adjudicated before it recognizes someone as a repeat infringer. That’s the correct stance. It’s one that is protective of free speech (contrary to Edson’s claims in the video that YouTube is somehow against free speech values), because it makes sure that the judicial system has determined if something is truly infringing before ordering the speech suppressed. (Not to mention that he’s wrong about the appeals process and what it means for a case to be fully adjudicated, but that’s a smaller point).
He also makes some pretty incendiary claims insulting the judge in the case, calling YouTube’s lawyers “pathological liars” with “no regard for the truth.” He also appears to call them “evil” in a overly dramatic (and laughable) moment in which he goes from black-and-white to backlit color, and stands up from behind a desk while poorly dramatizing anger and saying “evil will not prevail.”
Anyway, I had seen the video before looking through the docket, and originally wasn’t going to write anything about it, because the video is just so wrong about so much (though, of course, many of those watching it are taking it as accurate despite how misleading it is and how incorrect on the law it is). But then, in looking at the docket, I saw that the very same day that this two-hour, very highly produced video of Edson dramatically misrepresenting many of the key elements of his case, and standing up and screaming about how evil YouTube is and how he’ll never back down… his lawyer was filing a request for a time extension insisting that Edson’s health was so bad that he was “unable to operate.”
This is the third straight time Plaintiff has claimed that its CEO, Alex Edson, has fallen ill
right around the time that a brief is due. See Dkts. 46, 51. While we would normally take the
representations in Plaintiff’s letter to the Court at face value, we were surprised to see that
yesterday – the same day as its belated request for an extension – Mr. Edson posted a lengthy
video to his YouTube channel (available at https://youtu.be/4IaOeVgZ-wc) making a variety of
baseless claims about this case and asserting conspiracy theories about YouTube. Mr. Edson,
who does not appear in poor health, specifically targets Defendants’ counsel by personally
ridiculing them, accusing them of lying to the Court, identifying them by name, and posting
their photographs (see, e.g., clips beginning at 27:45, https://youtu.be/4IaOeVgZ-wc?t=1665,
and 1:43:00, https://youtu.be/4IaOeVgZ-wc?t=6180, where Mr. Edson states: “If you guys are
wondering how this possibly could have happened, and how a judge can get it so wrong, it’s
because YouTube’s lawyers are pathological liars. These people have no regard for the truth. Put
simply, YouTube has been successful in misleading the court.”).
Although it is unclear when this footage was recorded, it was posted yesterday,
suggesting Mr. Edson has likely been busy finalizing it over the last few days or weeks while he
could have been attending to the reply brief. We think it appropriate for the Court to consider
this sequence of events in determining whether to retroactively allow Plaintiff additional time
for a reply brief that it failed to file according to the Court’s deadline.
Just slightly after that was filed, the judge still granted the extension, though it’s unclear if he had seen YouTube’s letter by that time. Granting extensions is pretty standard practice here so it’s not surprising that it was granted. But, still, it can’t be a good look for Business Casual.
Meanwhile, Business Casual’s strategy seems to be to try to turn this into a battle in the court of public opinion, rather than the court of law. The organization has been trying to whip up social media fury about all this without much luck. It’s also been trying to get various politicians (like Ted Cruz and Josh Hawley) to pay attention and even called for the CIA and the State Dept. to investigate YouTube… because Business Casual is mad that YouTube applied its repeat infringer policy in a way that it doesn’t like.
He’s also trying to play up about how he’s being “shadow banned” and suppressed because the nearly two hour long rant isn’t getting as many views as he wants. Basically none of his tweets are getting any pickup, but who knows sooner or later maybe one of the politicians (or Elon Musk!) who he’s tweeting at will retweet him without understanding just how silly and legally deficient his argument is.
It’s been a year since the RIAA sued Charter Communications, using the same strategy it had used against smaller ISPs Cox and Grande Communications — that the DMCA actually requires internet access providers to completely kick users off upon the receipt of multiple (unproven) claims of copyright infringement. The RIAA has been plotting out this strategy for the better part of a decade.
For years, we’ve pointed out a number of problems with this, starting (most importantly) with the fact that accusations are not actual proof of infringement. And to kick people off of their sole access to the internet based solely on accusations would represent a real problem. As first noted by TorrentFreak, Charter has finally filed its answer, defenses, and counterclaims to the complaint. There’s a lot of interesting stuff in there, but a key part: the RIAA and its labels and publishing partners quietly admitted that they were suing over songs they did not hold the rights to. That’s kind of a big deal. Indeed, it reminds me of the revelation in the infamous Viacom/YouTube lawsuit that Viacom was suing over songs it had uploaded itself for marketing purposes.
From the counterclaims:
On January 15, 2020, Plaintiffs amended the list of works in suit, removing over 450 works from this case (the ?Dropped Works?).
The Record Company Plaintiffs dropped 272 sound recordings and the Music Publisher Plaintiffs dropped 183 music compositions.
Upon information and belief, Plaintiffs dropped at least some of these works because they do not ?own and/or control in whole or in part the copyrights and/or exclusive rights? the works.
Indeed, Plaintiffs dropped these works after they were ordered to produce further documentation relating to their purported ownership or ability to assert the works in suit in this case.
Despite later dropping these works the Record Company Plaintiffs, or their agent acting on their behalf, nevertheless sent notices to Charter in connection with the Dropped Works, claiming that they ?have identified a user ? reproducing or distributing an unauthorized copy of a copyrighted sound recording? and that the recipient of the notice ?may be liable for infringing activity occurring? on Charter?s network. The Record Company Plaintiffs further claimed in their notices that the user?s ?Internet account was used to illegally copy and/or distribute copyrighted music over the Internet? and that the notice contained ?the details of the illegal file-sharing, including the time, date, and a sampling of the music shared.? The Record Company Plaintiffs? notices ?assert that the information in the notice is accurate? and that they ?have a good faith belief that this activity is not authorized by the copyright owner, its agent, or the law.? The notices further stated that ?[u]nder penalty of perjury,? ?the RIAA is authorized to act on behalf of its member companies in manners involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.?
While the Music Publisher Plaintiffs did not send any notices for the music compositions in suit to Charter, the Music Publisher Plaintiffs? infringement claims in this case purportedly rely on notices sent by the Record Company Plaintiffs to Charter, including those for the Dropped Works.
Upon information and belief, at least in connection with the Dropped Works, the Record Company Plaintiffs sent notices to Charter with inaccurate information, including but not limited to the misrepresentation that the RIAA was authorized on behalf of Plaintiffs to send a notice relating to these allegedly infringed works, that the Record Company Plaintiff on whose behalf the notice was sent owned or controlled the work, and that the actions alleged to have been taken by Charter?s subscribers constituted infringement of the Record Company Plaintiffs? rights
The counterclaims go on to note that many of the works that have now been dropped due to the fact that the RIAA and its partners did not hold the copyright were the same songs that were previously used in the Cox Communications case:
Many of the same record companies and music publishers that are in this case pursued damages in Sony Music Entertainment et al. v. Cox Communications, Inc. et al, Case No. 1:18-cv-950 (LO/JFA) (E.D. Va.) (?Sony?) for certain of the Dropped Works, and the jury returned a verdict for certain of the Dropped Works in an amount of nearly $100,000 per work.
Yikes.
Now, some may claim that it doesn’t really matter if the RIAA and its various partners held the copyright in these works, but it absolutely does for a whole variety of reasons. Most obviously, you can’t sue over copyrights where you don’t hold the copyright. But, it also shows the incredible sloppiness with which the RIAA and the labels and publishers go about determining “infringement.” And that’s why we keep pointing out that it very much matters whether you’re kicking people off based solely on “accusations.” When you’re carpet bombing DMCA notices with an automated system, and no one competent seems to be overseeing the process, you get a ton of mistakes. And having people lose all internet access based on mistakes should be seen as a real problem.
The filing goes on to cite numerous examples of the RIAA and its partners mis-identifying infringement (including citing Techdirt), as well as the excellent and important study on DMCA takedown mistakes by Jennifer Urban, Joe Karaganis, and Brianna Schofield.
And, thus as part of the counterclaims, Charter is making a DMCA 512(f) claim of “knowingly sending materially inaccurate notices.” As we’ve discussed for a while, 512(f) is mostly a dead letter, but it would be nice if someone actually got called on abusive takedown notices. The fact that the RIAA and its partners here, nearly a year after filing suit, suddenly dropped hundreds of songs after being asked to show proof that they actually hold the copyright… seems like as good a target as any.
The other parts of the counterclaims are also interesting. Charter makes the (important) point that it cannot and should not be expected to spy on every action by its users, and therefore it’s silly to hold Charter liable for copyright infringement by its users. It would be nice if a court actually recognized that fact, but to date, it’s been a struggle.
We’ve written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG’s “vicarious infringement” claims, while letting the “contributory infringement” claims move forward. In October, the court rejected UMG’s attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.
The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande’s use of the DMCA safe harbor defense. I still have general issues with the idea that the “repeat infringer” part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can’t make use of the safe harbors because… it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.
So, without a policy, they couldn’t have reasonably implemented it… and thus, no safe harbors. Given the facts of the case, that’s perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn’t have a policy, but because it didn’t follow its own policy).
Of course, that doesn’t necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted “that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue.” Effectively, UMG will need to show that Grande “induced” infringement by its actions, and Grande will claim it did no such thing. But it can’t just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.
For years, we’ve noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.
That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O’Grady, who flat out mocked the idea that the internet was important, and made it clear he didn’t see any issue at all with banning people from the internet. Here’s how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:
I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.
The whole case was a complete mess — and it was made worse by some bad choices by Cox, including not really following its own stated DMCA repeat infringer policy. O’Grady’s ruling was bad, and unfortunately the appeals court upheld it. However, at least the Appeals Court made it more or less clear that they weren’t saying every ISP had to kick people off the internet — but rather that Cox lost its DMCA safe harbors by not following its own DMCA policy. While much attention was paid to the claim that Cox’s policy amounted to a “13 strike” policy before you might lose access, the appeals court notes it’s not the number of strikes that matters, so much as whether or not the company follows its own policy — and Cox did not.
Of course, another part that came out during the trial is that Cox was getting so completely bombarded by Rights Corp takedown notices (which doubled as demands for money), that Cox felt it needed to put in place systems to deal with the spam, which included limiting how many notices it would accept each day. Between the ruling in the original BMG case, and the revelations about Cox’s own practices, the RIAA clearly sensed blood in the water, and a chance to prove its point. And, thus, it has a massive lawsuit against Cox. It’s basically all of the major labels using the earlier case as evidence of some grand conspiracy to profit off of piracy.
Cox is one of the largest Internet service providers (?ISPs?) in the country. It
markets and sells high-speed Internet services to consumers nationwide. Through the provision
of those services, however, Cox also has knowingly contributed to, and reaped substantial
profits from, massive copyright infringement committed by thousands of its subscribers,
causing great harm to Plaintiffs, their recording artists and songwriters, and others whose
livelihoods depend upon the lawful acquisition of music. Cox?s contribution to its subscribers?
infringement is both willful and extensive, and renders Cox equally liable. Indeed, for years,
Cox deliberately refused to take reasonable measures to curb its customers from using its
Internet services to infringe on others? copyrights?even once Cox became aware of particular
customers engaging in specific, repeated acts of infringement. Plaintiffs? representatives (as
well as others) sent hundreds of thousands of statutory infringement notices to Cox, under
penalty of perjury, advising Cox of its subscribers? blatant and systematic use of Cox?s Internet
service to illegally download, copy, and distribute Plaintiffs? copyrighted music through
BitTorrent and other online file-sharing services. Rather than working with Plaintiffs to curb
this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of
infringement notices it would accept from copyright holders, thereby willfully blinding itself to
any of its subscribers? infringements that exceeded its ?cap.?
Cox also claimed to have implemented a ?thirteen-strike policy? before
terminating service of repeat infringers but, in actuality, Cox never permanently terminated any
subscribers. Instead, it lobbed ?soft terminations? with virtually automatic reinstatement, or it
simply did nothing at all. The reason for this is simple: rather than stop its subscribers?
unlawful activity, Cox prioritized its own profits over its legal obligations. Cox?s profits
increased dramatically as a result of the massive infringement that it facilitated, yet Cox
publicly told copyright holders that it needed to reduce the number of staff it had dedicated to
anti-piracy for budget reasons.
Given the mess of how Cox handled DMCA notices and its repeat infringer policy, this case is going to be a tough one for it to fight off. But the actual stakes are huge. The RIAA wants to be able to kick people entirely off the internet based purely on accusations — even if they’re bullshit. We should be very concerned about it.
And to increase the level of concern: this new case has been assigned to… Judge Liam O’Grady. Needless to say we’ll be watching it closely.
Over on LinkedIn a guy named Jim Weber wrote about how he was banned permanently from Twitter because he shared a few GIFs from the Olympics.
It all started when I saw a GIF of her sublime first pass on the floor routine two weeks ago on the front page of Reddit. Wanting to share what an awesome moment this was, I downloaded the GIF and uploaded it to Twitter with these four words: “Aly Raisman: She’s good.”
I had read that the IOC was banning the press from using GIFs but I didn’t see how that applied to me. Sure, I didn’t have the rights to any footage at the Olympics ? just like countless blogs and users don’t have rights to the NFL, NBA, MLB, NHL and NCAA footage that they create GIFs out of and profit from every day.
Weber notes that he figured the worst that would happen is that those tweets would get taken down. Instead, his account was banned. Permanently (though, as it turned out later, not really).
The story has gone pretty viral (on Twitter, naturally), with lots of people expressing anger at Twitter. It also appears that soon after the story started spreading, Twitter actually changed its mind and put back his account.
Here’s the thing, though: if you want to get upset about this, don’t get upset at Twitter. Get furious at parts of the DMCA and how some courts have interpreted it lately (and the International Olympic Committee — it almost always deserves the anger that is pointed in its direction for its extreme protectionist/copyright policies). But remember, not too long ago, the ISP Cox lost big time in an important DMCA case, at the key issue that swayed the judge was the lack of a competent “repeat infringer policy.” And what was one of the key things in that case? The fact that Cox didn’t permanently ban people.
So if you’re the legal team at Twitter, and you’re keeping up on the caselaw, you better believe that you’re going to make sure that you have a serious “repeat infringer policy” that kicks people off permanently for sharing a few pieces of copyright-covered material. Because even as basically everyone is saying “what? you shouldn’t lose your account permanently for sharing a few happy gifs from the Olympics,” in court it would be spun as “Twitter has a history of failing to reasonably implement a repeat infringer policy, as required by the DMCA in Section 512(i)(1)(A).” And if the Olympics or whoever gets a judge like the one in the Cox case, who doesn’t seem to care much about whether people use the internet or not, Twitter might just lose.
Yes, Twitter probably could have handled this a lot better, but if you want to get angry, get angry that copyright law is so fucked up these days.
Oh, also, this is a decent reminder to be at least somewhat careful about relying too much on anyone’s platform. Weber claims to recognize that…
Not only do I not plan to start a new Twitter account, I’m hesitant to post anything to social media platforms such as Facebook, Instagram or Snapchat with the knowledge that they can and will permanently shut down your account with the snap of their fingers.
… except his post about all of this is published on LinkedIn, which is really no different than any of the other social media platforms he listed above. So there’s a bit of irony in declaring that he’s hesitant to post on social media platforms… on a social media platform.
