Twitter Suspends Accounts For 'Infringement' Despite Not Linking To Any Infringing Works
from the getting-further-and-further-away dept
It's already troubling enough to many people that merely linking to some content can make you subject to a DMCA takedown notice. Merely linking to content that others may have uploaded or hosted doesn't seem to fall into any of the exclusive rights covered by copyright law. But now it appears things are going even further, and Twitter is helping, for reasons that make no sense. After a Spanish film distributor sent copyright takedown notices to Twitter about the accounts of Elite Torrents and Bajui, both accounts were shut down.Now, EliteTorrents is a torrent tracker site and Bajui is a linking site. And it's quite reasonable to argue that both sites enable a fair amount of copyright infringement. No one is arguing that point (though some would reasonably point out that neither site hosts or copies any infringing content themselves, leading back to that question of what rights are being violated by linking). However, even leaving that aside, the real concern here is that the tweets in question, which resulted in the takedown notices, didn't even link to any content. They did post film title names and a screenshot of the movie poster:
Now, I'm sure some will argue that it doesn't matter. What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine. But we do have limits for a reason. Even if you think that EliteTorrernts and Bajui are breaking the law, does that automatically justify any and all punishment? If someone jaywalks, is it okay for them to be thrown in prison for ten years "because they broke the law." That's not how this works. Here, it's not at all clear how these tweets violated copyright law in any way, and yet Twitter took the accounts down for copyright infringement. Does that mean that Twitter will now make judgments about your off Twitter activity to determine if you deserve a Twitter account? Doesn't that ring a lot of alarm bells?
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, infringement, linking, talking about
Companies: bajui, elitetorrents, twitter
Reader Comments
Subscribe: RSS
View by: Time | Thread
That would be enough reason to stop using Twitter. I've already posted links to sites like TPB on Facebook and Twitter alike. While I do avoid linking directly to infringing stuff under this type of policy I would be suspended as well.
Seems older players are actively trying to remove themselves by going against what made them famous in the first place eh?
[ link to this | view in thread ]
What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine.
Now on to: "But we do have limits for a reason. Even if you think that EliteTorrernts and Bajui are breaking the law, does that automatically justify any and all punishment?"
OKAY, I'll answer NO to your childishly loaded "any and all". -- NOW, you tell me some other way to stop what you admit is contributory infringement. What level of punishment are you willing to advocate, then, that's effective yet BELOW losing Twitter accounts?
Your move, and I predict a waffle, just more hand-wringing, "Oh, this is DREADFUL! Next copyright maximalists will be roasting puppies alive!"
Slow page load? Have to click to see comments the fanboys censored?
Get all the text and none of the ads with the new Techdirt Lite!
https://www.techdirt.com/?_format=lite
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Next copyright maximalists will be roasting puppies alive!
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
They are a global platform and its illegal for them to allow me to be seen in Russia, so I should have my account shutdown?
I discuss people reverse engineering, thats illegal in a few countries so my account should be pulled?
I discuss BT issues, some idiot claims that BT clients are illegal things so my account should be yanked?
I could be executed for illegal lifestyle in a large portion of the UAE, so I shouldn't have an account?
It is twitters playpen, and they can so what they want... but kowtowing to each petty whiner will leave them a platform empty of anything but forgotten advertiser accounts who can't reach anyone because everyones left or been banned because someone didn't like someone else.
[ link to this | view in thread ]
Re: What these two sites are doing involves infringement, and thus any and all punishment, including losing their Twitter accounts is fine.
[ link to this | view in thread ]
You have to read it closely: "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following . . . ." "To authorize" refers to contributory liability--only the copyright owner can authorize another to exercise one of the exclusive rights. Linking to a copyrighted work is authorizing someone to use that work, i.e., contributing to that use. If the authorization is itself not authorized, it's contributory infringement. Simple!
[ link to this | view in thread ]
Re:
Not that simple. Merely linking to something is not, in any way, an "authorization." It's just a link. A pointer. A direction. If you ask me where the nearest bank is, and I give you directions, I have not "authorized" you to go to the bank, nor have I contributed to anything when you rob that bank.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
There's admittedly no perfect answer to this - as you say, global platform combined with local laws has some interesting results. That being said, there's quite a difference between laws ordering a company to refuse service, and a company voluntarily refusing service due to possible legal issues.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
Disclaimer: this is pure guesswork on my part and most definitely not any sort of legal advice. Please do not start a business based on what I just said.
[ link to this | view in thread ]
Re: Re: Re:
So all it takes is the threat of legal issues to get your way with twitter.
The accounts in question were within the law as written, might not like what happens beyond that but removing the accounts because of possible legal action (because no law said they needed to kill the accounts) means they should wipe out more accounts because they could face legal issues for violating different laws. Like when Italy convicted, IIRC, Google execs.
[ link to this | view in thread ]
Yet the copyright forces appear to be more powerful with just accusations making you guilty till you prove your innocence. In a supposedly free country, what's wrong with this picture?
[ link to this | view in thread ]
Re: Re:
Full Definition of TWIT
1: an act of twitting : taunt
2: a silly annoying person : fool
twit
transitive verb
twit·tedtwit·ting
Definition of TWIT
1: to subject to light ridicule or reproach : rally
2: to make fun of as a fault
[ link to this | view in thread ]
Re:
Except that's not true. If it was, then Google and Bing would be in plenty of trouble, as would the Internet Archive.
In reality, linking to a copyrighted work is telling others where to find that copyrighted work. If it can be shown in court that this was done while knowing that the work was not authorized by the copyright holder(s), then there's contributory; otherwise it isn't.
Since none of this stuff involves the courts and there has been no establishment of who the rights holders are, whether they've authorized this specific instance of the work, whether fair use applies, or anything else... it's not contributory infringement.
This is the equivalent of someone tweeting a photo of an open beer, when that someone is known in certain circles to bootleg beer for minors. Sure, it's likely that the photo is their way of letting their underage followers know that it's time to come and buy their booze, but that doesn't mean they're actually doing it. This doesn't hold up in meatspace, and adding "on a computer" shouldn't suddenly make it OK.
[ link to this | view in thread ]
Re: Re:
From the original article...
The takedown notices in which the accounts were targeted were sent by the Spanish company Golem Distribución, who own the distribution rights of the film “Cut Bank.”
[ link to this | view in thread ]
Re: Re:
It's not "authorize" in the everyday sense of the word. It's "authorize" in the copyright sense. That is, it's a TERM OF ART. It is a legal fact that linking to infringing material gives rise to contributory infringement. I'm explaining why by pointing to the exact words in the statute that support that determination. You're talking about robbing banks.
[ link to this | view in thread ]
Re: Re:
It's absolutely, 100% true. For contributory infringement, there has to be (1) material contribution, and (2) knowledge. Linking is material contribution. When knowledge is added, it becomes contributory infringement. That's why Google and others remove infringing links when they receive knowledge that they point to something infringing. That's why the DMCA does not give safe harbor under 512(d) to those that fail to remove infringing links once they receive notice of them.
[ link to this | view in thread ]
Re: Re: Re:
Point me to the database where third parties can determine who owns a work, and who has license and for what uses of a work. Third parties have no mechanism for finding out what licenses have been granted. Therefore third parties cannot be expected to determine whether any particular copy or use has been licensed.
[ link to this | view in thread ]
Re: Re: Re: Re:
"point me to the database"
http://wondermark.com/1k62/
you mean this database
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
They are not a third party, and they are person or people the copyright holders should be pursuing.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re:
Good grief. "To authorize" is a term of art that has a specific legal meaning in a specific legal context. You can't point to some other nonlegal meaning from a different context and argue that the legal meaning in the legal context must be different.
But to go with Mike's terrible example, it could be that the law considers pointing a bank robber to a bank when you know that the robber intends to rob that bank is aiding and abetting. It's questionable whether it goes that far in that context, but in the context of copyright infringement on the internet, it certainly does go that far. Hence the lack of DMCA safe harbors for linkers and the case law that says so.
Part of the problem is that Mike doesn't understand contributory liability or aiding and abetting. This seems to be willful blindness on his part, at this point. From what I can surmise, he seems to think that everyone should be able to help others commit crimes. The law has never agreed.
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
and yet enlightenment has not followed...
you either allow free speech, or you are a censor...
simple as a pimple
[ link to this | view in thread ]
What about the poster image?
[ link to this | view in thread ]
Re:
It's not simple. You may be simple-minded, but it's not simple.
Linking may authorize someone to use a work, but mere 'use' is not an exclusive right of copyright. You need something more specific. Further, linking may not authorize someone to use a work, and anyway, authorizing by itself is not sufficient grounds for contributory infringement.
Here's an excerpt from Flava Works v. Gunter, 689 F.3d 754 (7th Cir. 2012). I apologize to the others -- not you -- for the length, but I don't think it can be trimmed down much further. The really key bits I have emboldened for emphasis.
Ultimately, the Seventh Circuit vacated the injunction against myVidster because Flava had not shown that it had contributed to infringement.
[ link to this | view in thread ]
Re: Re: Re:
That's not true, and also there is no such thing as infringing material. Material can't infringe; only people can infringe. Action doesn't become contributory infringement by contact with mere material, as though it carried a pathogen. It has to come from providing certain assistance to a human being who engaged in direct infringement.
A link will not necessarily be sufficient assistance to constitute contributory infringement. And there are a number of other problems with your outright untruthful claim, for which I suggest you take a look at my much longer comment to this article. Well, actually I suggest that you take a long walk off a short pier, but other people may find it informative.
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: What about the poster image?
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
There's no need for the personal attacks. You're a smart guy, let's have a smart conversation.
Linking may authorize someone to use a work, but mere 'use' is not an exclusive right of copyright. You need something more specific. Further, linking may not authorize someone to use a work, and anyway, authorizing by itself is not sufficient grounds for contributory infringement.
I agree that it's more complicated in that there is debate in the case law whether merely authorizing someone to exercise an exclusive right is enough to impose liability simpliciter. The debate is particularly strong when it comes to the distribution right. Some courts say that simply making a work available is a distribution. Many smart scholars, such as David Nimmer, agree. Other courts and commenters say the work has to be downloaded before there's a distribution. There are similar issues with the other rights.
Mike said: "Merely linking to content that others may have uploaded or hosted doesn't seem to fall into any of the exclusive rights covered by copyright law." I was merely pointing out that it does "fall into" the exclusive rights under the words "to authorize." Whether that authorized infringement has to occur before liability attaches is beside the point I was making. The exclusive rights aren't just "to do," they're "to authorize." Linking falls under "to authorize." You haven't refuted this, and it's true.
Here's an excerpt from Flava Works v. Gunter, 689 F.3d 754 (7th Cir. 2012). I apologize to the others -- not you -- for the length, but I don't think it can be trimmed down much further. The really key bits I have emboldened for emphasis.
No apology needed--I love case law. No snark needed either. That case is interesting because Posner struggles with the making available issue in the context of the performance right. But it also just reinforces my point: Linking can lead to contributory liability. The reason Flava Works was not likely to succeed on the merits was because there was no evidence that anyone had clicked on the links and streamed the videos. It's an issue of EVIDENCE.
As an aside, my favorite line in that case is where Posner says: "Brevity is the soul of wit and tediousness its limbs and outward flourishes." It's ironic because Posner is anything but brief, and that opinion is tediously filled with irrelevant ramblings.
Everything you quoted from the first "Flava specializes" to "remoteness into play" is about the reproduction and distribution rights. myVidster's service provided embedded videos (with links supplied by its users) for streaming, so Posner is correct that neither the reproduction right nor the distribution right is infringed.
You cut this part out, but as Posner says: "The direct infringers in this case are the uploaders; myVidster is neither a direct nor a contributory infringer—at least of Flava's exclusive right to copy and distribute copies of its copyrighted videos." That is correct.
The question is whether performance right is infringed--it's a public performance case, not a reproduction or distribution case. That analysis picks up where he says (as you quote): "So far we've been discussing infringement just by copying, and we can't stop there."
Posner posits that there are two potential ways the performance right could be infringed: (1) uploading to host server + embedding on myVidster, or (2) uploading to host server + embedding on myVidster + streaming to user. This is the making available issue: Is it enough that the stream is available, or does someone have to stream it?
He calls the first "performance by uploading" and the second "performance by receiving." The difference between the two is whether the link is actually clicked such that the embedded video is actually streamed to the user. Posner doesn't say which is correct.
This is the key part: "there is an argument that even though the video uploader is responsible for the transmitting and not myVidster, myVidster is assisting the transmission by providing the link between the uploader and the viewer, and is thus facilitating public performance." Thus, Posner says that myVidster might be liable as a contributory infringer under the "performance by receiving" theory.
But the problem was this: "there isn't even admissible evidence that they're actually being accessed via myVidster, rather than via other websites, and if they are not, myVidster is not contributing to their performance." There was NO EVIDENCE that anyone had clicked on the links and watched the videos.
As Posner states, "on the record compiled so far in this litigation there is no basis for the grant of a preliminary injunction." Without evidence that anyone had streamed anything, Flava Works wasn't likely to succeed on the merits. Of course, given the procedural posture of the case, and given that myVidster would be the one with this evidence, it's not a surprise.
I agree that the case law is somewhat complicated, but my point still stands: The textual hook for contributory liability comes from the "to authorize" part of Section 106. We can discuss what evidence is necessary to prove such liability, but that's not the point I was making.
[ link to this | view in thread ]
Re: Re: Re:
You couldn't have a smart conversation if it clocked you in the face and infringed the copyright on your rectum.
[ link to this | view in thread ]
Re: Re: Re: Re:
Seriously, though, the text in 106 that provides for contributory liability is "to authorize." Mike is wrong to suggest otherwise. However, I have no doubt that Mike will continue to claim that there's no textual basis for contributory liability, despite my having pointed out to him that he's wrong.
[ link to this | view in thread ]
[ link to this | view in thread ]
Clearly the author doesn't know the law
[ link to this | view in thread ]
Re: Re: Re:
There's no need for the personal attacks.
Why not? I have no problems with calling an ass an ass.
I agree that it's more complicated in that there is debate in the case law whether merely authorizing someone to exercise an exclusive right is enough to impose liability simpliciter. The debate is particularly strong when it comes to the distribution right. Some courts say that simply making a work available is a distribution. Many smart scholars, such as David Nimmer, agree. Other courts and commenters say the work has to be downloaded before there's a distribution. There are similar issues with the other rights.
Of course, in this case, both sides are wrong. Providing files for downloading cannot be distribution. The actual downloading is reproduction for sure (mitigated a bit by Cablevision), and there is a case to be made for secondary liability for the reproduction, but the distribution right in s. 106 is "to distribute copies or phonorecords of the copyrighted work," and since copies and phonorecords are both specifically defined in s. 101 as "material objects," they cannot be distributed by downloading any more than I can download a brick from homedepot.com. If providing files for downloading has to be considered direct infringement, it will probably fit better in the public display and public performance rights, though rightsholders have obvious reasons to not like that. For someone who is delving into rather technical aspects of copyright, I'm surprised to see that you've overlooked such plain language in the statute. Oh well, the courts routinely fuck that one up too.
In any case, Nimmer's wrong; you cannot have a secondary infringement without an underlying direct infringement. This is blackletter law. Making available is not infringing until someone actually takes advantage of it. Of course this wouldn't be the first time that the famous treatise writers get it wrong. I personally argued with Bill Patry that his interpretation of s. 109 (he basically argued the publisher's side) was wrong, and my reading was borne out in Kirtsaeng.
The only reason this is even argued is because plaintiffs are too lazy to get proper evidence of direct infringement. It's not simply a difference of opinion. This laziness is evident throughout copyright law in fact, and lately is best being seen through bloody-minded insistence that ISPs and governments police the Internet on behalf of copyright holders, and at their own expense.
Linking falls under "to authorize." You haven't refuted this, and it's true.
And as I said, linking may be secondary infringement, but it also may not be; circumstances matter. What I refuted was the absolute nature of your statement, and I was correct in that.
No snark needed either.
I disagree.
Linking can lead to contributory liability.
Again, I never said it couldn't. I just said that while it may, it doesn't necessarily.
Everything you quoted from the first "Flava specializes" to "remoteness into play" is about the reproduction and distribution rights. myVidster's service provided embedded videos (with links supplied by its users) for streaming, so Posner is correct that neither the reproduction right nor the distribution right is infringed.
As previously noted, distribution never happens over a wire; it's physically impossible to infringe in that way over the Internet.
He calls the first "performance by uploading" and the second "performance by receiving." The difference between the two is whether the link is actually clicked such that the embedded video is actually streamed to the user. Posner doesn't say which is correct.
Of course he doesn't; the case doesn't require it. That's just standard operating procedure for a court. Thus you can gain no support by saying that Posner considered the possibility that merely linking to a stream was secondary infringement (even though you immediately try), while I still seem to be doing okay with my 'maybe it is, maybe it isn't' approach.
[ link to this | view in thread ]
Nice discusion
Service to Community
[ link to this | view in thread ]