The Twitter DMCA Debacle

A recent story about a Twitter DMCA takedown has been getting a lot of press, including a mention on Mashable and on Ars Technica.

What exactly happened, remains unclear, as I will discuss in a minute, but this is not the first time that Twitter has gotten negative press for its handling of DMCA issues. I wrote about it last year (last year to the day actually) calling their DMCA procedure “A Fine Mess”.

But while those aren’t the Twitter’s DMCA issues being scrutinized now, they are related. It seems that Twitter may be ill-prepared for handling copyright issues and the case of JeanPierre Chigne seems only to solidify that position.

What Happened

What is known about the case is that it revolves around a music blogger named JeanPierre Chigne. According to his post on the topic, he posted a blog entry that linked to a leaked MP3 from an upcoming album entitled “High Violet” for the band The National.

According to Chigne, he found the MP3 for free on another site, Pitchfork, where it had been hosted legally since April 13. He then posted it to Mediafire, a file hosting service and wrote the blog post about it, following that up with the now-famous tweet.

The tweet simply read “New Post: Leaked: The National ” High Violet” and contained a link to the post. However, some time after it went up, Chigne received an email from Twitter saying that they had removed the update due to a DMCA complaint. Who sent the complaint is unknown at this time but Twitter did pull down the tweet though both the original post and the linked file remain active.

This raises a lot of questions but not just about Twitter’s DMCA policy, but also about the DMCA notice itself and whoever filed it.

Twitter’s Role

Twitter, as a service provider based within the U.S., is legally obligated to have a DMCA agent and promptly respond to proper notices of copyright infringement by either deleting or disabling access to allegeldy infringing works. Failure to do otherwise could make them liable for infringement that takes place on their service, even if they didn’t upload it.

Twitter, nor any service provider, can afford that. They would either be forced to police user uploads for infringement, which is impractical, or not accept user content at all, meaning shut down. This is why the safe harbor protections of the DMCA are so important.

Most likely the DMCA notice was filed not under 512c, which deals with web hosts, but rather 512d, which deals with information location tools (search engines, link blogs, etc.). But this feels like a stretch to me. Twitter was hosting a link that went to a blog entry that, in turn, linked to an allegedly infringing file. Typically, with 512d, one is supposed to disable links that go directly to infringing material.

However, the law does not say that expressly. Instead, it says “referring or linking users to an online location containing infringing material or infringing activity by using information location tools, including a directory, index, reference, pointer, or hypertext link.” It is unclear how a “link to a link” would apply here, if at all.

Twitter has the right to use its better judgment when deciding which notices to comply with. However, I’m certain that Twitter decided it was not worth the potential fight to avoid deleting a single tweet. Also, since Twitter wasn’t in a position to judge whether the content being linked to was infringing or how the statute deals with these links to links, Twitter also realized they may face actual liability.

In short, Twitter’s decision may not be popular, but it was the right one to make considering how much uncertainty there is over this tweet and how little impact the deletion actually had.

Chigne’s Role

It is very likely that Chigne did infringe the copyright of the band and the label. Contrary to the Mashable article, even though the song was available legally and freely on the Web beforehand, nothing gave Chigne the right to reupload it to Mediafire and share it there.

Many sites, including Mashable and Ars Technica, distribute content freely on the Web. However, if others take that content and repost it elsewhere, especially en masse, there’s a great likelihood DMCA notices would follow if the reuse violated any licenses. There are many reasons why one would want freely available content to stay in one place, statistic tracking, advertising revenue, etc., and what Chigne did is an infringement, if it was done without permission.

However, the tweet was not. The tweet itself merely contained the title of the post and a link to it. No infringing material at all and no direct links to such material.

That, in turn, raises a new question: Why was his tweet taken down?

The Filer’s Role

Even if we can reach the conclusion that the filer’s notice against Twitter was appropriate, which is very much up for debate, this approach makes almost no sense.

Twitter merely had a link to a blog post that had a link to an MP3. Filing a notice against the Tweet was just poor strategy.

It’s a bit like trying to keep people out of a building by setting up a roadblock across town simply because it is a way that some people might access it. It makes much more sense to simply block off the actual area. Doing otherwise not only restricts people’s movements unnecessarily, but it also does nothing to prevent others from accessing the restricted area.

It is just plain stupid.

If the MP3 is infringing, it makes much more sense to target the blog or the file host directly, not Twitter. It is a waste of everyone’s energy that will do nothing to stop downloading of the file and, with the attention this story has grabbed, has almost certainly increased it.

It is such an insane act that part of me suspects that copyright enforcement was not the real goal, but rather, promotion. To file a notice against a single tweet but not take action against the blog or the MP3 indicates that whoever filed the notice wanted to draw more attention to it, not less. Whether it is a clever marketing ruse, relying on the Streisand Effect to draw attention to the band and song, or something else I can’t say. But this approach seems almost tailor-made to increase the number of downloads, not decrease them.

Bottom Line

No matter how you look at it, this was a legally-dubious and flat out stupid use of the DMCA. There was no reason to involve Twitter in this matter if the MP3 is truly infringing. It makes no sense.

Though, based on what I’ve read, it is likely that Chigne did infringe the song when he put it on Mediafire, unless there is more to the story, the response doesn’t make any sense and, given that the song was being freely distributed it probably didn’t call for a response at all. After all, just because something is technically infringing doesn’t mean you have to stop it.

I strongly suspect there is more to this story than what is being told but we may never know.

In the end, I don’t think Twitter did anything wrong in this case and the fault lies completely with the person who filed the notice for making a dubious claim that resolves nothing. While I do think Chigne’s uploading of the song was likely an infringement, it seems the response was tailor made to do nothing to resolve it.

In short, it’s a debacle alright, but not one of Twitter’s making this time.

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