Last month saw 17 music publishers sue Twitter for providing users free, unauthorised access to copyrighted music. Filed in a United States district court, the suit alleged that while the microblogging platform knew about the infringing tweets on its platform, it failed to act against the accounts, choosing to monetise the infringing content instead.
“Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law,” read the lawsuit filed by the likes of BMG, Sony Music Publishing, Concord, and Universal Music Publishing Group, among others. “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…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.“
Music licensing deals between major music labels and the microblogging platform reportedly stalled after Elon Musk took over as CEO last year. Now, the publishers are seeking damages of up to $1,50,000 for each copyright infringement, which media houses speculate could run up to $250 million.
Point to note: Many of the petitioner’s arguments centre around Twitter not following its own platform policies, as well as United States’ copyright laws. The Indian government’s top IT brass have said as much about the company’s content moderation practices for a few years now—going so far as to call the platform ‘miserably‘ non-compliant with India’s platform regulation laws in courts. The bottom line: how do we determine and ensure that platforms enforce their policies fairly and transparently?
What did the publishers argue?
Twitter’s copyright policy is a law unto itself: Echoing the Indian government’s longstanding criticisms of Twitter’s ‘self-serving’ content moderation practices, the petitioners argued that Twitter behaved like the arbiter of content permitted on its platform, instead of following the United States’ copyright laws. Since December 2021, the National Music Publishers’ Association (NMPA)—which the petitioners are members of—sent notices to Twitter informing it of over 3,00,000 infringing tweets, including links to the tweets themselves.
For example, the platform decides whether to take down content flagged in infringement notices on a case-by-case basis. It also waits for a while before taking down the tweets—as opposed to its public claims of removing such content within minutes or hours. The petitioners claim that there are ‘thousands’ of instances where Twitter waited for over 30 days to act on infringing content, citing the example of the unauthorised use of Louis Armstrong’s hit “What A Wonderful World” on the platform:
“Across all the NMPA [copyright infringement] 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.”
Twitter also “failed entirely” to take down content flagged in copyright infringement notices, the petitioners added.
Twitter is not a ‘content neutral’ platform: How content appears or ‘streams’ on Twitter is directly a result of its employees’ decisions “to make configuration changes, optimize performance, and tap into interactive analytics”. Twitter can also see how its algorithms determining content discovery are performing. In short, Twitter isn’t content ‘neutral’—and in this case, it deliberately enhances its business model by selectively promoting video tweets, which often contain copyrighted music.
Twitter has the right to control infringing activities on its platform, but it chooses not to: Twitter has “absolute control” and access to the content on its servers—it can delete posts, pre-filter content to prevent infringing content from being posted to its serves, and terminate account access for infringing users. It chooses not to do so because music infringement makes Twitter more popular and profitable, the petitioners alleged.
Infringing users are punished insufficiently: Twitter has neither adopted nor implemented a copyright policy terminating users repeatedly engaging in infringement. This language did exist in its pre-2018 policies, however, since then, users may only be suspended for repeated infringement.
When it comes to implementation, infringing accounts are rarely suspended, the petitioners alleged, adding that the platform “suspended virtually none of the verified accounts identified in the NMPA Notices and which have large follower bases”. Verified accounts with large follower bases are viewed by the platform as “more valuable and monetizable,” with the platform giving them “preferential treatment,” the petitioners claimed. “Notwithstanding the NMPA Notices, Twitter continues to monetize the accounts of known repeat infringers,” the petitioners concluded.
Twitter’s contention that it will not suspend users for flagged content “unless it is clear that the user knew the content was illegal” is also contrary to the law where direct copyright infringement is a “strict liability offense”.
A damning indictment of Elon Musk’s Twitter reign: The suit took direct aim at CEO Elon Musk’s management of Twitter—which could lead to rising disrespect for copyrighted music on the platform.
For example, the petitioners cited a user who tweeted that the platform should only disable videos using copyrighted music, not suspend the entire infringing account. In its response, Twitter “suggested that the user ‘consider turning on subscriptions’—a feature of Twitter Blue that garners revenue for Twitter, enables users 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.”
The petitioners also reminded the court of Musk’s past comments on the Digital Millenium Copyright Act—described as a “plague on humanity”.
Overzealous DMCA is a plague on humanity
— Elon Musk (@elonmusk) May 12, 2022
They also cautioned against the company’s infamous layoffs under Musk—which left behind shrivelled legal and trust and safety teams. As opposed to making trust and safety decisions based on “sound policy development and reasonable implementation”, Twitter has outsourced these tasks to users via polls on the platform, the petitioners added.
Twitter actively encourages video tweets, including those using infringing music: Users are encouraged to upload videos to Twitter as the more users look at the post, the more it is boosted by the platform. “Because boosted tweets are displayed to more users and are therefore more likely to “go viral,” i.e., become extremely popular and be shared by large number of people on the Twitter platform, this arrangement encourages any user who wants more engagement with their tweets to post videos directly to the Twitter platform,” the petitioners argued.
Twitter has also acknowledged in marketing materials and blogs that both music and videos drive high levels of user engagement on the platform, the music publishers added.
Free music usurps ‘legitimate’ access to copyrighted work: Unauthorised and free access to copyrighted music on Twitter could end up usurping traditional models of paying for access to these songs. “It is impossible for Publishers and legitimate services to compete with the free infringing content Twitter provides,” the petitioners added.
Twitter’s actions affect how music companies interact with other social media platforms: Twitter’s actions devalue the ‘legitimate’ licensing agreements the music publishers struck with other social media platforms. Additionally, they immunise Twitter users to the effort it takes to produce these songs, making them less willing to fairly pay for music. “In sum, Twitter is seizing for itself an artificial competitive advantage against companies that are not violating copyright law, undercutting existing markets, cheapening the value of music, and undermining Publishers’ well-established business models,” the petitioners concluded.
Music is meant to be used for specific purposes: The petitioners added, in a somewhat bizarre argument, that “the obvious and overwhelming purpose for using Publishers’ musical compositions on Twitter’s platform is to maximize views, make users’ posts more compelling, and use the musical compositions for the same purpose for which they were created, not to engage in political or newsworthy speech, or commentary or criticism.” To that end, “uses at issue in this case circumvent, undermine, and thus harm” existing music markets.
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