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
    Rico R. (profile), 22 Jul 2020 @ 10:19am

    You’re far from the only one, Mike!

    I’ve posited the same thing on Facebook about Twitter’s refusal to terminate the President’s account could lead to Twitter losing their safe harbor. It would take an overzealous copyright holder to take Twitter to court over that refusal following their DMCA takedown against Trump, and I fear the results could be disastrous. But if Trump was an ordinary citizen, his account would have been terminated by their repeat infringer policy already, if not for another TOS violation.

    Unfortunately, I don’t think Trump supporters understand the law as written. I explained to a Trump supporter in the comments of a Facebook post how Panic! At the Disco had a viable copyright claim under the current law, if Trump continued to play their songs at his political rallies. I said nothing about my feelings about Trump or whether or not I agreed with that operation of copyright law, but I was still called a rather profane name because I as a Trump hater couldn’t see how Trump was just playing High Hopes for himself to pump himself up. The likelihood that Trump supporters would blame copyright law for Twitter’s hypothetical termination of Trump’s account is about as likely as Kanye West becoming the 46th President this year... It ain’t gonna happen!

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