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.

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

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  1. icon
    PaulT (profile), 23 Jul 2020 @ 2:58am

    Re: Re: Re: Good for Linkin Park

    "Copyright isn't the problem here, the problem is using material for which permission hasn't been sought."

    Well... that's where it gets a bit more complicated. First, assuming they weren't straight up pirating, the campaign will have purchased a blanket licence from ASCAP and other agencies. That means they have immediate legal access to use millions of songs in the libraries of the labels signed with them. So, in theory, they have sought permission to use it.

    The issue with approval by the artist is explained in the link above. Basically, although the song is legally licenced, the artist has recourse to sue and otherwise block a campaign they disagree with on moral or political grounds. It's a little unclear whether this actually extends to issuing takedown notices, so in theory it could have been misused here.

    The other issue is who actually owns the music. Major label contracts usually involve the artist handing all copyright and ownership over to the label. If the label agrees with the use of a song, but the artist disagrees, there may be nothing the artist can do about it as they are no longer the copyright holder. In the case of Linkin Park, they own their own record label as a subsidiary of Warner, so thankfully that wasn't an issue here.

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