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As for strategy, I've found it easier to direct my "requests" to Twitter than to go after the infringer. Just last week I had a client try to register a user-name on twitter. Someone was squatting on the name. My client's name is not only his public business name, but it's also a registered trademark. Twitter resolved the issue for me within a matter of days. I can only imagine how much more complicated (and potentially expensive for my client) it would have been to go after the infringer. In this case, there weren't a lot of damages. Perhaps that's where the decision might shift...if the wrongdoer has done significant financial harm, them a combined approach might be best.
Jason: thanks for the response. The situation you describe involves someone squatting on a brand or trade name on Twitter. The issue in my post talks about the content of actual tweets - that's what was disturbing for me about it. Copyright owners are going to Twitter with take down notices for tweets by users b/c they are saying the links lead to infringing content. It's not even that what the person tweeted violated the copyright, rather the destination did. This seems like something completely new in the way copyright owners are protecting IP.
I understand the distinction. My only point was to that the trend you speak of (going to Twitter with a take down demand) may be driven by the ease and effectiveness of doing so. Twitter is responsive, and approaching Twitter with a request (whether it's squatting or infringing text or tweets with links to infringing content) is probably the fastest, easiest and least expensive way to resolve the issue.
On a related point, do you think it's not an infringing act to link to infringing content? Reminds me of a story I heard on NPR recently, where someone received an email about John McCain having fathered an illegitimate black child. Knowing the story was not true, certain politicians forwarded the story anyway. The excuses sound the same: "I didn't make it up (or I didn't infring), I just forwarded it (or I just linked to it)." I'm not so sure, at the end of the day, there is much of a difference...or is there? Does it come down to knowledge or intent?
As always, I appreciate how your comments and questions make me think! Thanks Mike.
Jason: I always appreciate your participation! I'm not sure whether providing a link to infringing material is infringement itself. Does anyone know where the courts hold on this?
Can you actually take down a Tweet? I'm not sure how you'd do that. Maybe you have to go to Twitter to ask them to do it.
I can see how you could easily make a mistake by tweeting links to other people's articles - although this is a common use of Twitter, and most people would be happy to have their article referenced in this way. I blogged a link to an article and the authors were very upset because their web site required people to sign up with their contact details before receiving it. I changed the link to take the user to the sign-up form. But if it had been a tweet instead of a blog, what could I have done?
Mike, this really had me thinking (which I appreciate), so I kept looking into the issue as time permitted. What I keep finding is the doctrine of "contributory infringement". Looks like there is at least the potential for liability if you intentionally link to known infringing material. I think the real answer is in the details...but the general answer is, yes, it's a possible liability.
@Mike - Regarding linking: Check out Stephan Ott's page @ http://www.linksandlaw.com/. He also has a guide called "Links and Law" which you can find if you search for it (I don?t have a direct link.). I don't know if his web site supersedes his guide, or vice versa.
I don?t think there is a single answer yet. (At least, not in most jurisdictions). To my eyes, linking cases are very fact specific. They are probably also very tied to the peculiarities of the law of the country where the case is being heard, although I?ve never looked into this. Also, equities are probably engaged, although this is rarely explicitly admitted in the decisions. People who are linking to illegal stuff usually know it. And the Courts know it too.
There are probably also different results depending on the intellectual property at issue. For example, linking to trade-marked material engages a different set of balances, and different considerations, than copyright.
@Shelley: yes, you can delete your own tweets by clicking the ?delete? button beneath each. (Although there is some debate about whether they are truly deleted, or whether they are just removed from your front page feed.) If it?s not your tweet, only Twitter can delete it.
Posting a tweet might imply consent to it being re-tweeted. Posting other material might not. But in the end it's probably easiest for Twitter just to remove the tweets rather than get in the middle of a DMCA fight.
Great stuff guys!
In US jurisprudence we have seen a lot of interesting cases where contributory infringement was used by copyright holders to go after those who make protected works available. The Copyright Act does not expressly hold that anyone can be liable for the infringing activity of another party (Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)), but as mentioned above courts have developed common law doctrines to extend secondary liability as we have seen in Grokster and more recently the Limewire case. In both of these cases, however, the copyright holders went after services making infringement possible through P2P technologies, not the simple sharing of links (check out this great write up on secondary liability issues ilt.eff.org/.../Copyright:_Infringement_Issues)
On the flip side, we recently saw YouTube evade a billion dollar law suit brought against it by Viacom who claimed that the video site's users uploaded infringing content that the defendant knew about. The court granted summary judgment in favor of YouTube based on safe harbor provisions in the DMCA (check out Evan Brown's write up on the case: blog.internetcases.com/.../youtube-victorious-in-copyright-case-brought-by-viacom).
So the question remains, does the DMCA take the teeth out of secondary liability? If sites like YouTube and Veoh fall under safe harbor provisions of the DMCA even though they know that some users are uploading infringing content, how can we say that users who share links to sites that contain infringing content might be subjected to secondary liability (in this case it would be tertiary liability!)? I understand Twitter's provision that taking down a tweet that a copyright owner complains about is simpler than more thorough courses of action, but when someone is providing a link to a third-party site, where is the qualifying infringement that triggers the effective take down notice on Twitter?
For an in depth treatment of this topic check out The Law Applicable to Secondary Liability in Internet Cases by Graeme B. Dinwoodie, Rochelle Dreyfuss, and Annette Kur, available from SSRN papers.ssrn.com/.../papers.cfm
I took a quick look at the Twitter DMCA takedown notices. I only clicked on a few of what was a long list of them, but they all alleged that what had been tweeted was a link to illegally downloadable copyrighted material. (i.e. movie or music links). So let's be honest, nobody is talking about using the DMCA takedown to stifle free speech here. Fair use doesn't enter into it (really) because it's not copyright in the tweet being infringed, but copyright in the movie to which the tweet points.
Hi Jonathan: you are 100% correct. As we have discovered through this conversation, the take down notices in these cases are really based on a contributory infringement argument rather than an argument that the tweets themselves are infringing. Are there any cases where complainants are going after tweeters in addition to sending the take down notice? What about Twitter shutting down the account of a user who repeatedly links to infringing materials? If this starts happening, doesn't the equation change?
Right now, complainants are sending take down notices to Twitter, as Jason mentioned, most likely for matters of efficiency and cost. Twitter tends to comply with these notices without question. Can this backfire and start affecting innocent users, like those posting controversial but important tweets that may not infringe anything?