Yesterday, news broke that Twitter was facing a $250 million lawsuit from music publishers over alleged infringement of some 1,700 different works.
The lawsuit was filed by the National Music Publishers Association (NMPA) and claims that Twitter has not been taking adequate steps to prevent the piracy of music on its service and has not acquired a license to stream the songs in question.
The lawsuit comes amid what can only be described as a chaotic time for Twitter. Since Elon Musk took over the site in October 2022, the company has been beset by layoffs, including their entire press team, allegations of unpaid bills and the controversial launch of paid verification.
However, both supporters and detractors of Twitter have been confused about this lawsuit, why the NMPA things Twitter should be held liable, and what Twitter has or has not done that may bring on that liability.
So, we’re going to take a look at this lawsuit, the basics of what Twitter is accused of and why this may not be the craziest story in Twitter’s recent history.
The Basics of the Law
With most music, there are two separate copyrights that must be considered: The copyright in the composition (the written part) and the recording (the actual audio).
The NMPA represents music publishers and songwriters. Therefore, their arguments deal with the compositions in the songs. However, many infringements involving music, such as streaming songs without a license, are violations of BOTH the composition and the recording.
That, in turn, is what Twitter is accused of.
According to the lawsuit, beginning in December 2021, the NMPA began submitting Digital Millennium Copyright Act (DMCA) notices to Twitter demanding the removal of music (and videos that contained music) that was unlicensed.
Initially, it seems as if the notices were handled properly and, according to a March 2023 report, Twitter was in negotiations to license NMPA-controlled music in a manner similar to Facebook, Instagram and TikTok. However, it’s claimed that those negotiations stalled shortly after Musk took over.
Still, this might not have been a huge deal for Twitter. Under the DMCA, the site could enjoy a great deal of protection from claims of infringement over user-uploaded content. This is referred to as “safe harbor” and basically means that a host of user-uploaded content, such as Twitter, is not liable when those users infringe.
But, under the DMCA, that safe harbor comes with requirements. Specifically, such hosts are obligated to have an agent to receive DMCA notice, respond to completed notices by “expeditiously” removing allegedly infringing content and have a protocol to ban repeat infringers.
However, the music publishers claim that this is where Twitter dropped the ball. They say that of the hundreds of thousands of tweets they filed notices again, many took weeks or moths to come down and some didn’t come down at all. They further allege that Twitter failed to act against repeat infringers and is actively benefiting from all this infringement.
As such, they have filed a lawsuit claiming direct, contributory and vicarious copyright infringement. They are seeking the maximum statutory damages, namely $150,000, for each of the 1,700 songs listed in the lawsuit (which is described as a non-exhaustive list). That brings the total to $255 million in potential damages.
While that damage award is unlikely, it would not be unprecedented. In fact, there are very good reasons that the NMPA to feel emboldened right now.
The Past and Likely Future of This Case
In December 2019, a Virginia jury ruled that internet service provider (ISP) Cox Communications was liable for $1 billion in statutory damages in a lawsuit filed by both the major record labels and publishers.
Though the lawsuit is different in that Cox provides home internet service, and it deals with both the record labels and the publishers, the cases share an overarching theme: The music industry holding service providers accountable for not fulfilling their obligations under the DMCA.
The ruling sent shock waves through the tech industry, largely for its eye-popping award of damages. It represented a large tech company being held accountable in a significant way for failing to complete its obligations under the DMCA. Even if it is overturned or reduced on appeal, much of the impact has already been felt.
As we saw with the Blurred Lines case, even if a headline-grabbing verdict ends up being an isolated case, it inspires others to follow the path.
As such, even though the NMPA seems to be going it alone right now, it seems likely that they won’t be alone for long. Other rightsholders have had similar grievances to the NMPA about Twitter’s handling of copyright in recent months and Musk’s own tweets don’t particularly help their arguments.
However, for the NMPA, this probably isn’t about actually winning a large damages award. They, most likely, are wanting to force Twitter back to the table for reaching a licensing deal. This is strongly supported in their history.
In March 2019, the NMPA filed a $370 million lawsuit against the lyric site Genius. That case was settled less than a year later, in February 2020, after the two sides reached an agreement.
The real goal for the NMPA, almost certainly, isn’t to win the case, but to force Twitter to the negotiating table for an agreement. That’s also by far the most likely outcome, as it’s the one most beneficial to both sides.
Proof of that is in the fact that sites like Facebook, TikTok and YouTube all have similar agreements, even though they could, theoretically, shield themselves from liability through the DMCA.
On the whole, the NMPA’s strategy has been clear, file big lawsuits like this one in order to push companies to negotiate for a license. It’s happened with Roblox, Genius and other sites.
However, the Cox case means that the threats of such lawsuits aren’t hollow. They, and the record labels, have shown they can win significant damages when they have to.
The only reason the Twitter lawsuit is so newsworthy is because of the ongoing struggles at Twitter itself. It’s unclear what role Musk’s takeover of the company had in its copyright woes. Musk has also been unpredictable in his handling of various legal challenges that Twitter faces.
Ultimately, this will most likely end with a settlement, but it’s likely that other rightsholders groups may follow the NMPA’s lead. Some of them may be less inclined to settle or seek an agreement and, if the NMPA is right about Twitter’s practices, it would be wise to beef up its compliance in this space.
That said, this may wind up being one of the more mundane things that happened at Twitter in the first year of Musk’s ownership. At least here, there are clear analogs to other large tech companies and the questions raised are not new or unique to Twitter.
In fact, in a strange way, this is just par for the course when it comes to tech companies and issues over music licensing.