JURIST Special Guest Columnist Michael Mintz of My Media Labs says that while it makes perfect sense that copyright owners have been resorting to Twitter take-down notices in order to curb infringement, where secondary liability has been once removed infringement may no longer be an issue....
an a tweet violate someone's copyright? Apparently some copyright owners think so. According to an article on Yahoo Finance, Twitter received 300 take-down notices from copyright owners in November 2010, alleging that users had posted links to pirated copies of their work. Twitter responded by removing the allegedly infringing tweets and reserved the right to suspend the account of those who sent the offending tweets. The take-down notices and Twitter's response have raised some legal questions; most notably, what makes posting a link to infringing materials infringement itself?
Courts have not yet given a definitive standard for whether the posting of links to pirated materials constitutes infringement, but Twitter is very clear on this in their Copyright and DMCA policy:
We respond to valid claims of alleged copyright infringement such as the unauthorized use of a copyrighted image as an account background or account avatar, or Tweets containing a link to allegedly infringing materials.
Twitter also has points on its Rules page warning users that it will respond to "clear and complete notices of alleged copyright infringement," and that users may not use the site for "any unlawful purposes or for promotion of illegal activities." The site's Terms of Service goes even further, stating:
We reserve the right to remove Content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Twitter will also terminate a user's account if the user is determined to be a repeat infringer.
The Terms of Service that every user agrees to when they sign up for an account grant Twitter broad power to take down tweets and shut down user accounts even if infringement has not been proven. But from a purely legal perspective, is Twitter right to take down first and ask questions later?
Chilling Effects is an online clearinghouse run jointly by the Electronic Frontier Foundation and other institutions. They started collecting the take down notices on their site at the end of November. Wendy Seltzer, founder of Chilling Effects, said:
"It's interesting that they [Twitter] are receiving takedowns, given that most of what they're hosting is little 140-character bursts of expression ... Copyright holders are pushing the complaint out further, not going after the user who hosted, or even the user who pointed, but going after Twitter because it's made itself a central location for the collection of information."
Why aren't copyright owners going after the infringers themselves? Lawyers addressed this question in a discussion recently on Martindale.com Connected.
Jason Romrell, General Counsel for insuranceLeads.com said:
"I've found it easier to direct my "requests" to Twitter than to go after the infringer." He says that when you go to Twitter they "resolve the issue in a matter of days." Pursuing infringers, who can be spread out across jurisdictions, hard to pinpoint, and potentially damage-proof (AKA poor) just doesn't make sense "when a letter to Twitter will work just fine."
The typical scenario justifying the take-down notice involves a user who intentionally posts links to pirated movies and music, while encouraging other to consume this content. It is possible, however, that a tweet contains significant, original expression and incidentally used a link to infringing material to emphasize its point. With services like Deck.ly, users can now write longer posts via Twitter where 140 characters are displayed in the tweet itself, and then a link is provided to read the rest of the update on either the 3rd party client reader TweetDeck or via browser (a dedicated Home Page and site is in the works). There are a few implications to this twist in tweeting:
1. Links to infringing works now may be buried in Deck.ly past the 140 character tweet that shows up on the Twitter website, making it harder for copyright owners to monitor and pinpoint such links.
2. Users expression via Deck.ly has the potential to be even more significant than a link to an allegedly infringing work, and issuing a take down without any opportunity for the user to respond or defend their "super-tweet" begins to look more like limiting free expression than defending copyright.
3. An entire line of Fair Use defenses may be available for users who can establish that a link is like a quote, and that copyright owners should have targeted the source of the infringement (namely the original infringer on the target destination) rather than the poster of a link, which was secondary to the free expression in a Deck.ly post.
With or without Deck.ly, there is still potential for cases of innocent infringement. Shelley Dunstone, Principal at Legal Circles, a consultancy service for the legal profession, said:
"I can see how you could easily make a mistake by tweeting links to other people's articles - although this is a common use of Twitter, and most people would be happy to have their article referenced in this way. I blogged a link to an article and the authors were very upset because their web site required people to sign up with their contact details before receiving it. I changed the link to take the user to the sign-up form."
Shelley's case brings up a relevant point in deciding whether copyright owners can go a step beyond the take-down notice, and directly sue the tweeter: intent.
There is potential for liability under the doctrine of contributory infringement when the defendant intentionally links to known, infringing material. The Copyright Act does not expressly hold that anyone can be liable for the infringing activity of another party Sony Corp. v. Universal City Studios, but courts have developed common law doctrines to extend secondary liability as we have seen in MGM v. Grokster and more recently the Limewire case. In both of these cases, however, the copyright holders sued the services making infringement possible through their P2P technologies. This would be more analogous in the current situations to a copyright owner going after the destination site of the link, rather than dealing with Twitter or the linking user, for whom secondary liability may exist.
As for services providing platforms for infringing activities, YouTube recently evaded a billion dollar lawsuit brought against it by Viacom who claimed that users uploaded infringing content that the defendant knew about. The court granted summary judgment in favor of YouTube based on safe harbor provisions in the DMCA. According to martindale.com Connected member and lawyer Evan Brown, the DMCA requires "non-knowledge" by the defendant of specific infringing material on the network. He wrote:
"The major issue in the case was whether YouTube met these conditions of "non-knowledge" (that's my term, not the court's) so that it could be in the DMCA safe harbor. Viacom argued that the infringement was so pervasive on YouTube that the site should have been aware of the infringement and thus not in the safe harbor. YouTube of course argued otherwise."
Does the DMCA take the teeth out of secondary liability? If a site like YouTube falls under safe harbor provisions of the DMCA even though they know that some users are uploading infringing content, how can it be concluded that a user sharing a link to content on a third-party site has infringed the copyright holders' work in significant enough way to warrant removing the tweet? Under the logic employed in YouTube, such users would not fall under secondary liability, or in this case could possibly be tertiary liability (user A uploads infringing content to site 1, and then user B broadcasts a link to user A's content on site 2).
Coming back to the ease that a take-down notice to Twitter entails, it makes perfect sense that copyright owners are resorting to it, but when someone is providing a link to a third-party site, where secondary liability has been once removed, does the original tweet really constitute infringement? For an in depth treatment of this topic check out The Law Applicable to Secondary Liability in Internet Cases.
Mike Mintz is a lawyer and strategist for My Media Labs, and a social media consultant for LexisNexis. The opinions expressed in this article do not necessarily reflect those of LexisNexis, Reed Elsevier, any of its affiliates or subsidiaries, shareholders, employees or customers, and should not be considered
Suggested citation: Michael Mintz, 140 Characters to Copyright Infringement: Twitter Take-down Notices Raise Legal Questions, JURIST - Forum,
April 6, 2011, http://jurist.org/forum/2011/04/140-characters-to-copyright-infringement-twitter-takedown-notices-raise-legal-questions.php.