Twitter Faces Music Industry Reckoning in Major Copyright Suit

The most surprising thing about the music industry suing Twitter over copyright infringement is that it didn’t happen sooner, according to attorneys who say the case will test the social media giant’s ability to raise a decades-old liability shield.

X Corp., formerly Twitter Inc., profits from rampant infringement while failing to remedy the problem, a slew of music publishers said in a June 14 complaint in a Tennessee federal court. Collectively, the companies hold the rights to millions of songs from artists like Rihanna and Taylor Swift, to Mick Jagger and John Denver. Twitter allegedly “rebuffed” calls for it to obtain licenses, unlike other social platforms.

The suit will challenge Twitter’s ability to wield the safe harbor provided in the Digital Millennium Copyright Act. That law protects platforms from liability for user infringement, but only if they satisfy a number of requirements including honoring takedown requests and having a policy to terminate the accounts of repeat infringers.

The shield has been overcome to the tune of big awards, particularly in cases against internet service providers. The music industry in 2019 secured a $1 billion verdict against Cox Communications—an appeal in the US Court of Appeals in the Fourth Circuit is pending. The lead law firm in that case, Oppenheim & Zebrak LLP, also represents the music publishers against Twitter.

With the industry turning its attention to social media, big tech companies that own platforms like Facebook, TikTok, and YouTube have come around to paying for music to avoid liability.

It’s a trend likely to continue, business and entertainment professor John Simson of American University, who helped found music royalty collection house SoundExchange and ran it for nearly a decade.

“We’re going to see more and more of these cases,” Simson said. “Publishers, people who own content are going to keep pushing because we have seen an evolution of the internet and these services. It’s not remotely like what it was when it was Netscape and AOL.”

Twitter an ‘Outlier’

The DMCA, enacted in 1998, was designed to let platforms grow without having to face liability when any of an unprecedented number of users infringed a copyright.

The law’s tradeoff was that ISPs and web platforms had to adhere to its takedown notice and counter-notice regime, among other requirements.

The suit was filed in the US District Court for the Middle District of Tennessee by Sony Music Publishing LLC, Universal Music Corp., Warner Chappell Music Corp., and a host of other publishers and labels that filled the entire first page of the complaint.

It said the publishers, through the National Music Publishers’ Association, had expanded substantial efforts to finding infringement on Twitter and notifying the company.

“I think it has been a long time coming,” music copyright attorney Edwin F. McPherson of McPherson LLP said. “Other social media companies have been paying a licensing fee for this stuff and Twitter users unfortunately use it constantly.”

“They’re copyright violations,” he said. “I’m not sure the users understand that but Twitter does.”

The publishers alleged that Twitter routinely ignored or dragged its feet on takedown notices, and failed to terminate serial infringers despite repeatedly being alerted to their activities. They also highlighted licensing deals with other platforms.

“It seems everyone else has acknowledged that you have to pay if you are going to have this rampant amount of music,” IP attorney Ronald Oines of Rutan & Tucker LLP said. “If you’re going to make gazillions of dollars, and part of doing that is by using copyrighted content, one way or another the law is going to make you pay for it.”

Attorneys also highlighted the complaint’s detailed history on how the NMPA has tried to work with Twitter.

“Twitter is quite an outlier at this point in terms of how they deal with music,” IP attorney Luke DeMarte of Michael Best & Friedrich LLP said. “They say, ‘We’re not a music platform.’”

He said that may have been a somewhat better argument for past versions of the site, “but now they make it so easy to upload audio-video content, I don’t see how they can keep sticking to that story.”

In response to Bloomberg Law’s emailed request for comment, Twitter sent an automated “poop” emoji.

Big Risk

The Cox Communications case shows how “outlier” platforms and ISPs can face massive liability given the amount of content their services host.

Copyright infringement allows for statutory damages of $750 to $30,000 per work, and as much as $150,000 if the infringement is willful. Damages aren’t based directly on actual damages or lost profits.

In Cox’s case, a federal court in Virginia found internal Cox emails indicated the company openly disregarded its responsibilities under the DMCA before it lost the massive verdict.

“The Cox case sheds some light on the fact that if you don’t do enough, completely ignore requests from owners, then you’re going to suffer the consequences,” Simson said. “You have to be a good citizen.”

IP attorney Erik Belt of McCarter & English LLP noted that Twitter executives had been adamant before Congress that the company doesn’t support infringement and that it polices its site.

“And here they are not policing it,” Belt said. “It goes to willfulness; you had the means to control that issue and still didn’t.”

Belt added that “several smoking guns” may arise during the evidence-gathering discovery of litigation that indicate Twitter knew it had the capacity to do more and chose not to.

Evolving Internet—and Law?

The internet has evolved substantially since the DMCA became law, and social media companies have become larger and more lucrative.

Simpson noted that the platforms also rely on algorithms to take a more active role in deciding what content people see and don’t see. Some of those algorithms have been used to filter content that’s objectionable for other reasons.

“There’s a whole new variety of services, and they may try to claim, ‘We’re just pipes,’ like early days of the internet,” Simson said, referencing the notion that platforms merely provide infrastructure for creators of content they never interact with. “The industry has shown you’re doing more than that, so you have to take more care than that.”

That evolution has had some practitioners and lawmakers wondering if the DMCA—along with other decades-old internet laws like the Communications Decency Act—need an upgrade.

“The theory behind the safe harbor is you can’t police every act,” McPherson said. “Facebook, Twitter, all these social media outlets insist they can’t police every act and figure out what material is owned by somebody else. But the fact is that these social media companies have tons of content that they know is copyrighted.”

The case is Concord Music Grp., Inc. v. X Corp, M.D. Tenn., No. 23-cv-00606, complaint filed 6/14/23.