Japan's Top Court Says 45 Million Twitter Users Must Check That Anything They Retweet Is Not A Copyright Infringement

from the yeah,-that's-feasible dept

Earlier this year, Techdirt reported on an extremely serious development in the world of Japanese copyright, with a new law that will make copyright infringement a criminal offense. Now the country's Supreme Court has issued a ruling that will make using Twitter in Japan more of a risk, legally speaking. The case concerns a photo of a flower, originally posted on a web site in 2009, with the photographer's name and copyright notice. As often happens, the photo was then tweeted without the photographer's consent, and was further retweeted. The problem is that Twitter uses "smart auto-cropping" of images, with the aim of focusing on "salient" regions, and thus increasing the likelihood of someone looking at and engaging with the tweet. Twitter's auto-cropped version of the photo did not include the photographer's name or copyright notice.

As TorrentFreak explains, the photographer was not happy with these tweets and the trimmed versions of his image, even though the original photo showed up if viewers of the retweets clicked on the cut-down photo. He took legal action, and the Tokyo District Court found that the original posting of the flower had indeed infringed the photographer's copyright, but dismissed the photographer's demand for the identities of the people who re-tweeted the image. The photographer then took his case to the High Court division dealing with copyright matters in Japan. It agreed there had been a breach of copyright, and found also that the people posting the cropped image on Twitter had violated the photographer's moral rights because his name had been removed. As a result, the Japanese High Court ordered Twitter to hand over the email addresses of all those who had posted the image.

Twitter appealed to Japan's Supreme Court, arguing that the cropping of the images was automated, and therefore not under the control of users. According to TorrentFreak, the company warned that a judgment blaming Twitter's users could have a chilling effect on the platform in Japan. Nonetheless:

In a decision handed down yesterday, the Supreme Court ordered Twitter to hand over the email addresses of the three retweeters after finding that the photographer's rights were indeed infringed when Twitter's cropping tool removed his identifying information.

Four out of five judges on the bench sided with the photographer, with Justice Hayashi dissenting. He argued that ruling in favor of the plaintiff would put Twitter users in the position of having to verify every piece of content was non-infringing before retweeting. The other judges said that despite these problems, the law must be upheld as it is for content published on other platforms.

It's not clear what the photographer intends to do with the email addresses, but the larger problem is that the ruling makes retweeting images on Twitter much more of a legal risk for the service's 45 million users in Japan. Taken together with the earlier criminalization of copyright infringement, this latest move is likely to discourage people in Japan from precisely the kind of creativity the Internet has helped to unleash. Japan will be culturally poorer as a result -- just as the EU will be, thanks to the unworkable upload filters that are about to be introduced. And all because copyright fanatics seem to think their concerns must take precedence over everything else.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: auto-crop, copyright, intermediary liability, japan
Companies: twitter

If Twitter Shuts Down Trump's Account For Repeat Infringement Then Will Trump Fans Finally Realize That Copyright Is The Problem?

from the or-are-we-still-in-a-facts-optional-world? dept

Over the last few months we've seen President Trump and his supporters repeatedly attack social media in general -- and Twitter specifically -- for apparently "arbitrary" moderation decisions. Yet, as we've pointed out repeatedly, it seems that the only times that Twitter has actually taken down content from Trump's Twitter account, it's been because they were effectively required to in response to DMCA takedown requests. It happened in early June, and then it happened to a Trump supporter, and last week it once again happened to Trump himself, when the band Linkin Park issued a takedown after Trump used their song in a video he posted to Twitter:

On Saturday night, President Trump retweeted a campaign video that featured the band's 2002 hit song 'In The End.' Linkin Park swiftly took action on having the video removed and shared a message with fans on Twitter.

Once again, though, rather than recognize that the structure of DMCA 512 that effectively creates massive incentives to pull down content is the issue, clueless Trump fans, like Judicial Watch's Tom Fitton, wanted to blame Twitter.

But, of course, it's not Twitter that's the issue here at all, but the structure of the DMCA. What's stunning is no Trump supporters seem at all willing to discuss this -- even as Trump-supporting Senator Thom Tillis, who heads the Intellectual Property Subcommittee, is actively working hard to make copyright law even more prone to censorship.

But here's the thing I wonder: at what point would Twitter have to shut down Trump's account as a repeat infringer? After all, based on the court rulings in the BMG v. Cox case, and some other related cases, courts have said that any repeat infringer policy doesn't need to take into account if there's actual infringement, just accusations of infringement. And, indeed, the US Copyright Office's recent report on Section 512 of the DMCA has endorsed that viewpoint.

And the DMCA does require you to have a policy to remove the accounts of repeat infringers, though it does allow for some leeway in how a service designs such a plan, so long as it does exist. In theory, Twitter could offer more "strikes" to "newsworthy" accounts, but at some point based on the way some courts (and the Copyright Office) have read the law (incorrectly to me, but who am I?), Twitter would be required to shut down the president's account.

And think of what a fucking mess that would be. At the very least, it might highlight why Section 512 is so problematic, and that the repeat infringer policy in particular can lead to absurd results. But, given how Trump and his supporters have responded to other DMCA issues, and the fact that his supporters in the Senate seem willing to make the law even more prone to these kinds of takedowns, it's likely that they'll just lie and blame Twitter for what the law itself requires.

Filed Under: 512i, content moderation, copyright, dmca, donald trump, repeat infringer
Companies: twitter

Holy Hell Were We Lucky That Twitter's Big Breach Was Just A Bunch Of SIM Swapping Kids; Can We Please Encrypt DMs Now?

from the not-great dept

Everyone is still sorting out exactly what happened last week with the big hack of Twitter in which a number of prominent accounts -- including those of Barack Obama, Elon Musk, Jeff Bezos, Apple, and Uber -- all tweeted out a Bitcoin scam, promising to double people's money if they sent Bitcoin to a specific wallet (which appeared to receive a little over $100k). However, from what has been reported so far, it appears we actually got fairly lucky and that it was mainly a bunch of SIM swapping social engineers who historically have focused on getting popular short usernames. If you're not familiar with all of this, the Reply All podcast had a fascinating episode about the scam last year.

Meanwhile, Vice has a post describing how the hackers involved convinced a Twitter employee, who had access to a Twitter control panel, to make changes for them. The guy who controls the (formerly Adrian Lamo's) Twitter account @6, provided some details on how the hack got around two factor authentication controls: within the control panel a new email address was added to the account, and then, from the control panel, the two factor authentication would be disabled. An alert would be emailed out about this -- but to the new email address. Brian Krebs provided some details about who he thought was behind all of this (and the connection to the SIM swapped hack of Jack Dorsey's account from last year). Finally, the NY Times scored an interview with the hackers themselves -- again, showing that it was just a crew of SIM swapping kids, mostly doing this for the lulz (and also suggesting that the person Krebs fingered was only peripherally involved, in that he'd made use of the same access to pick up Lamo's old @6 account, but didn't take part in the Bitcoin scheme).

The interviews indicate that the attack was not the work of a single country like Russia or a sophisticated group of hackers. Instead, it was done by a group of young people — one of whom says he lives at home with his mother — who got to know one another because of their obsession with owning early or unusual screen names, particularly one letter or number, like @y or @6.

The Times verified that the four people were connected to the hack by matching their social media and cryptocurrency accounts to accounts that were involved with the events on Wednesday. They also presented corroborating evidence of their involvement, like the logs from their conversations on Discord, a messaging platform popular with gamers and hackers, and Twitter.

What does become clear is that, from the details revealed so far, this wasn't some grand nefarious scheme. This was a bunch of kids having fun, who happened to get access to a control panel through some means or another.

At the very least, we should be thankful that's all this was. As multiple people I spoke to have said, we should be very, very, very glad that this was basically some kids having a laugh and hoping to make a little money, rather than a nation state wishing to start World War III. And while Twitter has not yet said if Direct Messages were accessed, from everything that's been revealed so far, it's pretty clear that whoever controlled these accounts easily had access to DMs.

And that should raise a bunch of questions.

While the hack was still going on, Senator Josh Hawley dashed off one of his infamous letters to Twitter CEO Jack Dorsey, asking a list of questions. Surprisingly, given Hawley's involvement and the usual inanity of his letters, this one was somewhat on point and asked a bunch of mostly reasonable questions:

Did this event represent a breach of users’ own account security or of Twitter’s systems?

Were accounts protected by two-factor authentication successfully targeted in this breach? If so, how was this possible?

Did this breach compromise the account security of users whose accounts were not used to share fraudulent posts? If so, how many accounts were affected? Were all accounts’ security compromised by this breach?

How many users may have faced data theft as a consequence of this breach?

What measures does Twitter undertake to prevent system-level hacks from breaching the security of its entire userbase?

Did this attack threaten the security of the president’s own Twitter account?

However, much more important is the key question asked by Senator Ron Wyden: why hasn't Twitter introduced end-to-end encryption for DMs, which would have prevented the ability for hackers to have read DMs under the circumstances described above.

"In September of 2018, shortly before he testified before the Senate Intelligence Committee, I met privately with Twitter's CEO Jack Dorsey. During that conversation, Mr. Dorsey told me the company was working on end-to-end encrypted direct messages. It has been nearly two years since our meeting, and Twitter DMs are still not encrypted, leaving them vulnerable to employees who abuse their internal access to the company's systems, and hackers who gain unauthorized access," Wyden said in a statement.

Of course, given all that, we should note that despite Hawley asking good questions, he's a bit of a hypocrite here, as he has attacked encryption for years, and is a co-sponsor of the EARN IT Act, which will endanger encryption. If Hawley actually wanted Twitter to better protect user privacy in their data, he should be supporting Wyden's push to have the company encrypt more, not less.

Filed Under: dms, encryption, josh hawley, ron wyden, sim swapping, twitter hack
Companies: twitter

Rather Than Attacking Section 230, Why Aren't Trump Supporters Angry About The DMCA That's Actually Causing Issues?

from the you-guys-got-it-all-wrong dept

A few weeks back, we wrote about how one of Donald Trump's tirades over Twitter "moderating" him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.

Last week, we saw copyright again cause trouble in Trump world -- and again, Trump's fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame "MAGA memes." Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it "election interference" by Twitter:

Except, as you can even see in that very screenshot that Mollie (who apparently can't even read the screenshots she's posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

“per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives. The account was permanently suspended for repeated violations of this policy.”

Donnie Jr. got similarly angry, and had an odd interpretation of what "public domain" means:

Now, we can argue whether or not the copyright claim was valid. I think for most memes, even Donktum's incredibly stupid ones, he would have strong fair use claims. But as we've seen in cases like the BMG v. Cox case, courts are now saying that the repeat infringer policy is not for proven infringement, but merely alleged infringement.

Even worse? In the Copyright Office's recent report on Section 512 of the DMCA, it supported that viewpoint, that the DMCA not only requires a repeat infringer policy, but that it should be based on repeated accusations of infringement, even if those accusations are not accurate.

Given that, Twitter has little choice but to shut down Donktum's feed, and people blaming Twitter or Section 230 for this (or idiotically calling it "election interference") have misplaced their blame. They should, instead, be concerned about Section 512(i) of the DMCA and the series of recent cases that say it is based on accusation, and not on any adjudication of infringement. And, similarly, they should also be asking why the Copyright Office recently supported this censorial definition in the years-long study it did on Section 512 and just released a little over a month ago. From that report:

... any definition must be consistent with the statutory criteria that repeat infringer means repeat alleged infringer, not repeat adjudicated infringer.

And then this week, we had yet another example, in which Twitter removed an image from a Trump tweet after the NY Times filed a DMCA takedown notice:

The original tweet by Trump issued on June 30, showed a meme that read “In reality they’re not after me they’re after you I’m just in the way” with Trump’s picture in the background.

The background picture was taken by a New York Times photographer, to accompany a feature article on then presidential candidate Trump in September 2015.

Twitter now displays the message “This image has been removed in response to a report from the copyright holder,” in place of the tweet.

You can see what it looks like now:

As I write this, the usual crew hasn't freaked out yet, but I fully expect that when they do, they're likely to blame Twitter or Section 230, neither of which are even remotely responsible here.

But while Trump's fans in Congress are running around trying to change Section 230 with a new bill every other day, why aren't any of them looking at fixing this part of the DMCA that is actually leading to censorship (unlike what's happening with 230)?

Filed Under: carpe donktum, censorship, copyright, dmca, dmca 512, donald trump, notice and takedown, repeat infringer, section 230
Companies: twitter

Judge Sides With Twitter Over Devin Nunes In Case Over Satirical Internet Cow: Section 230 Removes Twitter From Frivolous Case

from the one-for-the-cow dept

Well, some small bit of good news in the Section 230 front: after a judge was clearly skeptical over Devin Nunes' arguments for why Twitter should be involved in Nunes' frivolous SLAPP suit over a satirical internet cow that mocks him, the judge has now announced that Section 230 of the CDA rightly protects Twitter.

In a letter that quickly dismisses each of Nunes's lawyer Steven Biss's silly arguments why 230 doesn't apply, the judge basically says "nope" to all of those arguments and tells Twitter's lawyer to draft an order dismissing Twitter from the case. Here's just one part of the letter:

The court must look to 47 USC Section 230 and the caselaw interpreting the act and analyze plaintiff's allegations to determin if Twitter has immunity under the act. Plaintiff would have Twitter be held liable for defamation for the content placed on its internet platform by others and would have Twitter found to be negligent for not removing the content place on its internet platform by others. Section 230 reads in subsection (c)(1) "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its platform. The court refuses to do so and relies on the rulings in Zeran v. Am. Online... The court in Zeran stated "Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred".

The judge is also not at all impressed by Biss's argument of "but Twitter is so biased!" That doesn't matter:

The plaintiff also alleges that Twitter has a bias towards a point of view and that bias is so extreme that it governs its decisions regarding content that is allowed on its internet platform and that course of conduct makes it a content provider. The allegations in the Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.... were similar to those by the plaintiff in this case concerning content decisions being one sided and the court in the Nemet case ruled that the service provider was immune from suit pursuant to 47 USC Section 230.

The court finds the issues in this case substantially similar to the issues presented in the Zeran and Nemet cases and applying the rulings in the Zeran and Nemet cases the court finds that Twitter is not a content provider based on the allegations by Plaintiff in this lawsuit. The Court finds that Twitter is immune from the defamation claims of plaintiff based on 47 USC Section 230.

As an interesting side note, the court also cites Section (c)(2) of Section 230, the rarely used part of the law that says you also can't be liable for moderation decisions. A lot of cases around 230 don't even consider the (c)(2) issues, because (c)(1) is usually enough to dismiss. But here, the court basically says both of them are good enough to get Twitter out of the lawsuit.

The court further finds that 47 USC Section 230 (c)(2) provides immunity for all civil liability and therefore Twitter is immune from Plaintiff's negligence claim based on the allegations in the complaint and the courts application of the rulings in the Zeran and Nemet cases to the allegations in this case.

Next up: hopefully the court will dismiss the underlying defamation claims against the two satirical Twitter accounts (Devin Nunes' Cow and Devin Nunes' Mom) along with political consultant Liz Mair.

Filed Under: cda 230, devin nunes, devin nunes' cow, intermediary liability, nunescow, pat carome, section 230, steven biss
Companies: twitter

Copyright Gets In The Way Of Chef Andres' 'Recipes For The People'; Because The DMCA Takedown System Is Still Broken

from the copyright-not-for-the-people dept

On Tuesday evening, famed chef (and all around wonderful human being) José Andrés tweeted about how Twitter had taken down his videos "without really a detailed explanation of why or whom."

As he notes, "I'm guilty before a judge will rule..." Of course, while his anger was pointed at Twitter, the real problem is not Twitter, but rather the DMCA's Section 512, whose entire design is that you are guilty before any judge will rule. This is why we've been pointing out that the notice-and-takedown process of the DMCA seems to raise serious 1st Amendment issues. It's very much guilty until proven innocent, by design, with censorship built in (and yes, I mean censorship because it's compelled by the state).

What's really stunning, of course, is that this is happening at the same time when the Copyright Office is claiming that we should make this problem much, much worse by giving people and companies more power to censor and force content down prior to any judicial review. And, of course, you have willing elected officials trying to make this happen.

The details of the Chef Andrés' story are instructive of just how problematic the notice-and-takedown system is, and has been. He's been creating a bunch of amazing videos under the #RecipesForThePeople hashtag, where he and his daughters cook up simple meals that anyone can prepare at home during lockdown. You should watch them. They're a joy to watch. In each one, beyond cooking a relatively simple meal, he does it to music (often dancing and/or singing along while cooking). As he explains, the music all comes from musicians he knows -- such as Lin Manuel Miranda -- who gave him permission to do so:

There are a bunch more, but they're really a joy to watch. And while Lin Manuel Miranda gave his permission, that doesn't much matter in reality, because the entire DMCA 512 notice-and-takedown system is based on the idea that you just keep on sending takedowns. And even if permission has been granted, why that's just too difficult to continue to track. So the takedowns still get sent, and Twitter is pressured into taking it down, or it could face massive liability for copyright infringement's statutory damages.

While this story might just seem like a "mistake" it's actually illustrative for a variety of important debates we're having -- both the debate about making the DMCA even worse and the Section 230 debates. We pointed out that the Copyright Office (and people in Congress talking about 512 reform) have so far mostly ignored false takedown notices. But they happen every damn day. We hear about ones like this one, because it happened to someone who is pretty famous and so it makes news. But if it happened to someone less well known -- they might just be out of luck.

And it also impacts the Section 230 debates, because so much of the reform ideas put forth would effectively turn other issues into a similar DMCA style "notice-and-takedown." Indeed, that's part of the DOJ's proposal to create a "knowledge" standard that would require sites to remove content. Under such a regime, again, you have a system like this one, in which once a platform is notified, assuming it cannot tell whether or not the content is legit or licensed or whatnot, it has every incentive to just pull it down -- "before a judge will rule..."

Filed Under: censorship, chef andres, dmca, dmca 512, hamilton, jose andres, lin manuel miranda, notice and takedown, section 230
Companies: twitter

Devin Nunes' Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes

from the this-is-not-a-winning-strategy dept

Twitter and Steven Biss (Devin Nunes' rather busy, but still terrible, lawyer) were in court on Friday to continue Nunes' frivolous SLAPP suit against a satirical internet cow who makes fun of Nunes. The current issue remains Twitter's unwillingness to reveal who is behind the @DevinCow account. Twitter, correctly, continues to point out that it doesn't need to give up the account info, that it's protected from doing so under Section 230, that the Cow has engaged in 1st Amendment protected speech, and more. And Biss's response appears to be... "but Twitter's mean to us, so it's not fair, it's not, it's not, it's not."

Needless to say, this is not a very good argument.

Nunes’ attorney Steven Biss said that Twitter should not qualify for immunity under the law, known as Section 230, contending it treats Nunes unfairly.

“They’re doing more than allowing Liz Mair, the cow and the mom to post a tweet,” Biss said. “They’re censoring, they’re promoting an anti-Nunes agenda, they’re banning conservative accounts and they’re knowingly encouraging it.”

Again, there's no evidence that Twitter is "banning conservative accounts" or "knowingly encouraging" anything involving an "anti-Nunes agenda," but even if they were, that's explicitly allowed (even encouraged) under Section 230, which flat out says that sites cannot be held liable for the moderation of constitutionally protected speech. At least the judge seems to recognize how faulty Biss' argument is:

“I don’t know of any requirement in the law that says these sites have to be neutral,” Marshall said. “Just because you don’t like it and asked to have them take it down, doesn’t mean they’re liable if they don’t take it down.”

Patrick Carome, an attorney for Twitter, argued that Biss wanted Marshall to carve out an exception for Twitter in the law, which is up to Congress, not the courts.

“Mr. Biss is asking the court to enact a new law,” Carome said. “And if he wants a new law, well, Mr. Nunes is a congressman.”

As an aside, Twitter's lawyer, Patrick Carome is not just "an attorney for Twitter," he was the lawyer who won the first big case about Section 230 that made it clear that it protected websites from liability for their moderation decisions. He understands the law inside and out. Biss... not so much.

According to Courthouse News, the judge even pointed out that Trump's silly executive order shows pretty clearly that Twitter's interpretation of 230 is correct:

“Doesn’t the existence of the executive order, which isn’t law, suggest the law can do what Twitter says it can?” the judge opined.

Biss also claimed that he was at a "dead end" in trying to determine the identity of who is behind the Cow account, which is kind of funny given the revelations that Biss tried to use subpoenas in wholly unrelated cases to try to unmask the account on the sly. Also, as Twitter pointed out, Nunes/Biss had not actually explored all legal avenues:

Carome listed the steps the congressman could take to get the identities revealed. They include filing subpoenas in Virginia and California and going through numerous steps to overcome each state’s unmasking laws.

“I don’t know why Nunes has been sitting on his hands,” Twitter’s lawyer said, pointing to the congressman’s original requests for the identities when the complaint was first filed over a year ago. “He’s wasted a lot of time.”

Of course, the reason that Biss hasn't done that is because he probably recognizes that he'll never overcome the bar to unmasking who is behind the Cow, because everything the Cow has said is protected speech, and the right to speak anonymously remains protected by the 1st Amendment as well.

That said, the judge (who had refused to dismiss the case earlier when he had the chance) pushed back on Twitter somewhat as well. Again, from the Courthouse News report:

But much like the first hearing in the case, Judge Marshall expressed some doubts about Twitter’s arguments as well. He pointed to a procedural issue involving the company’s failure to respond to numerous offenses Nunes alleges the company committed, ranging from shadow banning conservatives to acts of illegal defamation.

But Carome argued that procedurally, Twitter didn’t have to answer questions at this point in the case, while Marshall said state law might suggest otherwise.

The judge also expressed discontent at Twitter’s efforts to dismiss the case so early.

“The Supreme Court of Virginia doesn’t want us to short-circuit cases. I’m reminded by lawyers of it frequently,” he said to some chuckles in the court.

But that's all procedural nonsense. The key point is this: Devin Nunes is filing a vexatious, frivolous suit (one of many) against some online critics who were making fun of him (some of them anonymously). He has no legitimate claim, and as such no legitimate reason to unmask the people behind the satirical accounts.

Filed Under: 1st amendment, anonymity, cda 230, devin nunes, devin nunes' cow, devincow, pat carome, section 230, steven biss, unmasking
Companies: twitter

Twitter Taking Down Trump Campaign Video Over Questionable Copyright Claim Demonstrates Why Trump Should Support Section 230

from the better-for-free-speech dept

Here's an interesting tidbit: the latest move by Twitter to deal with a tweet related to President Trump is that it pulled down a Trump campaign video that was presented as a "tribute" to George Floyd, the Minneapolis man murdered by police last week, and whose senseless death has brought so many thousands to the streets across the US. The video remains on YouTube for the moment. It includes a lot of still photos and a few short video clips. It appears that the copyright holder on one (or perhaps more) of those images and clips likely didn't like it to be included for use by a President for a propaganda video they disagreed with, and filed the DMCA claim.

I think there's a very strong fair use argument here for a whole variety of reasons (and, yes, I fully understand the moral claims that whoever took this photo may feel about it being used in this way, but copyright is not supposed to be used in that way).

But seeing as this comes so soon after Trump's complete and total meltdown over Twitter and Section 230 after it added some additional context to one of his tweets -- leading him to state publicly that Section 230 should be revoked -- I do wonder if this move, in which a video was actually taken down (unlike with his tweets), will have him similarly rage against copyright law? Will we see an executive order demanding an impossible reinterpretation of Section 512's notice-and-takedown provisions? Or does it not work like that?

Of course, what this really demonstrates is why Trump and his fans should absolutely support Section 230, rather than pan it. Section 230, among other things, gives Twitter the freedom to decide how best to run its site, and to date, that's meant bending over backwards to keep the President's tweets online and available for people to view. However, Section 230 explicitly exempts intellectual property. For copyright, there's Section 512 of the DMCA, which is much, much weaker than CDA 230. With CDA 230, there's an immunity -- if there's 3rd party content, a site is not liable and also a site cannot be liable for its moderation choices. With DMCA 512, it's a "safe harbor." Where if you meet certain conditions, you can then be protected. But one element of that safe harbor, is that to retain it you have to take down the content upon receipt of a valid DMCA takedown notice.

I've long argued that this aspect of the DMCA 512, in which the threat of significant liability from the state (i.e., the court system) raises serious 1st Amendment issues. That's because the law heavily favors silencing content with the threat of massive liability if you don't. And the system is heavily imbalanced as there's no effective punishment for false notices, meaning the system is weighted very, very heavily in favor of censorship.

So here's a good point to compare how the two different "intermediary liability" regimes actually work. Under CDA 230, free speech is much more protected. Indeed, the very nature of it is that the courts under 230 cannot force sites to take down speech (they leave that choice up to the sites themselves). Under DMCA 512, however, the liability issue makes it very, very easy to issue bogus takedowns that lead to content being removed.

It's interesting that this is all coming a week after Trump's bizarre tirade against 230, and the same week that the Senate argued that we should make the censoring power of the DMCA even more censorial.

It seems a much better approach would be to leave 230 alone, but fix DMCA 512 by getting rid of the imbalanced nature in putting tremendous state pressure on websites to remove content based solely on an accusation of infringement.

Filed Under: campaign video, copyright, dmca, dmca 512, donald trump, free speech, george floyd, notice and takedown, section 230, takedowns
Companies: twitter