Why Elon Musk's layoffs may have exposed Twitter to a $250m copyright suit
It seems that Twitter is in the news for all the wrong reasons these days. This time a group of 17 music publishers, including major record labels in the US, have sued the platform for up to $250 million in a bulk copyright infringement claim.
The National Music Publishers’ Association ( NMPA), which represents labels such as Universal, Sony and EMI, accuses Twitter of infringing the compositions of hundreds of songs by allowing its users to post music to the platform without permission.
In the complaint filed on June 14 in a Nashville federal court, the group posits that Twitter is “rife with copyright infringement” and “awash” with videos featuring copyrighted works.
“Twitter fuels its business with countless infringing copies of musical compositions, violating publishers’ and others’ exclusive rights under copyright law,” says the complaint.
The group is asking for damages of $150,000 per work it says Twitter has infringed, a total of roughly 1,700 individual songs.
While competitors of Twitter such as TikTok, Instagram, Snapchat, Facebook, and YouTube have licensing agreements in place, Twitter appears to be resisting.
Musk’s ‘plague on humanity’
This may be unsurprising, given that Elon Musk is infamously outspoken about copyright law, in particular the Digital Millennium Copyright Act ( DMCA) 1998, which amended US copyright law to address aspects of the relationship between copyright and the internet.
“Current copyright law in general goes absurdly far beyond protecting the original creator,” Musk wrote in one tweet in May 2022, adding: “Overzealous DMCA is a plague on humanity”.
These statements were a response to plans to further tighten copyright laws in the US and came just five months before the platform became his in October 2022.
But several months on, Musk's view of the Act seemed to have changed. Following a copyright spat between two Twitter users, Musk posted in March this year: “Accounts engaging in repeated, egregious weaponization of DMCA on Twitter or encouraging weaponisation of DMCA will receive temporary suspensions.
“That said, reasonable media takedown requests are, of course, appropriate and will always be supported.”
However, the music publishers accuse Twitter of failing to respond properly to takedown notices and that it lacks a proper termination policy.
“Since August 2018, Twitter’s copyright policy has not included the words ‘terminate’ or ‘termination’ when informing subscribers and account holders of the potential consequences for repeat infringement,” says the complaint. “Instead, Twitter’s copyright policy refers only to suspensions.”
And Lumen, an independent database studying takedown notices and other legal removal requests concerning online content, reported in April that Twitter had stopped sharing reports of external content takedown requests. This, according to Twitter, is to enable the social media platform to review its third-party data-sharing policies.
Negotiation break-down
Negotiations between Twitter and the music industry to establish broad licensing agreements had broken down “months ago”, says the publishers’ group, after Elon Musk bought the platform for $44 billion.
Musk’s cost-cutting endeavours following this acquisition included laying off half of Twitter’s 7,500 employees and the resignation of a further 25%. According to The New York Times, this swept away some of the staff responsible for the music rights discussions.
The suit also notes the loss of Twitter’s legal and trust and safety teams, and outsourcing trust and safety decisions to Twitter user polls.
Alan Clarke, of counsel at Greenspoon Marder, believes that the downsizing of Twitter’s content review department, including its legal team, has “added to delays in its taking down of infringing content”.
Takedown notices
Most of the take-down notices levelled at Twitter prior to filing this lawsuit were for music videos, videos of live music performances, or other videos synchronised to the music whose copyright is controlled by the publishers, notes Clarke.
He points out that music publishers are in the business of promoting and monetising the musical compositions of songwriters, not recordings of artists.
“They license songs for recordings and other income-generating exploitations, collect royalties for their affiliated songwriters, and also work to obtain opportunities for those compositions to be recorded and released,” he explains.
The NMPA began to notify Twitter weekly from December 2021 of tweets that contained the allegedly infringing music which, according to the complaint, numbered more than 300,000.
However, Twitter “routinely delayed or failed to act on those notices”, the group said.
‘Hot’ multimedia
In a media statement published on June 15, David Israelite, president of the NMPA, said: “Twitter stands alone as the largest social media platform that has completely refused to license the millions of songs on its service.”
The group said that Twitter “breeds massive copyright infringement that harms music creators”, activity that is “no accident”, it said. Once a short-form text-based platform, the Twitter platform has intentionally competed with rivals to become a “hot destination” for multimedia content, particularly “music-infused” videos.
Videos, it says, draw much higher rates of engagement and advertising revenue than posts that merely include text, images, or animated GIFs. The complaint cites, for example, a tweet containing more than two minutes’ worth of Rihanna’s Umbrella video.
The tweet, which states, “15 years ago, rihanna [sic] released ‘umbrella’ [sic]”, attracted more than 221,000 views and almost 15,000 ‘likes’.
As a result, Twitter “profits handsomely” from such activities, the NMPA alleges.
“Twitter knows perfectly well that neither it nor users of the Twitter platform have secured licences for the rampant use of music being made on its platform…” says the complaint, adding that Twitter has failed to close the accounts of “repeat offenders”.
Unfair advantage?
William Stroever, chair of the Intellectual Property Department at Cole Schotz, notes the complaint’s allegation that Twitter is getting an unfair advantage against companies that do pay licensing fees, undercutting existing markets and “cheapening” the value of music.
“I don't know if it's an ‘unfair advantage’ as much as [Twitter is] just making more money than they would have,” he observes. “If they're going to try and make as much money as they can, then that probably involves not paying licensing fees.”
While he believes Twitter will settle, it will be in the form of an ongoing licence, he suggests.
“In terms of how long it will take to be resolved, I don't know. No company wants to spend money on litigation—it’s a kind of means to an end.”
‘Safe harbour’ protection
Clarke highlights a section of the DMCA that is pertinent to this case—Section 512 ‘safe harbour’ protection.
“Copyright Law already addresses the violations at issue—under the DMCA, social media platforms can limit their liability for infringement by their users in the content that users upload,” he explains.
“However, this ‘safe harbour’ comes with specified requirements, including the platform’s expeditious removal of infringing content; taking steps that provide for the termination of accounts held by repeat offenders—which the lawsuit alleges that Twitter does not do.”
Will Twitter pay up?
But will the lawsuit ruffle Musk’s feathers enough to cough up—either in the shape of damages or a licensing agreement?
Stroever suggests that this lawsuit represents more of an ongoing negotiation rather than an endpoint.
“I very much doubt this will go all the way through a trial to the end date,” he tells WIPR, pointing out that there are many similar legal disputes over music licensing among other platforms. “This is just the next one, and I don't think it'll be the last, as new platforms come up.”
Stroever adds: “Entertainment nowadays is [characterised by] a lot of these short clips packaged together with music and I think we're going to see more of that.”
Clarke agrees: “Although it is likely that the lawsuit will settle, the battle may be lengthy.”
For now, Twitter has 21 days to respond to the allegations.
WIPR has contacted counsel for Twitter, without immediate response. Twitter no longer accepts press queries by email or social media, instead responding with a ‘poo’ emoji to anyone who tries their luck.
Today’s top stories
Italy: Milan ‘selected as third seat of the UPC’
Boies Schiller Flexner gains anti-counterfeiting expert
Board of Appeal's novelty reasoning opens doors in EPO examinations and oppositions
