Music Publishers File Suit Against Twitter to Rein in Rampant Copyright Infringement

On June 14, a series of 17 music publishers, members of the National Music Publishers’ Association (NMPA), filed a lawsuit in the Middle District of Tennessee against the social media platform, Twitter. The music publishers’ suit alleges claims of direct, vicarious and contributory copyright infringement by Twitter involving about 1,700 copyrighted songs, many of which continue to remain accessible in infringing Twitter posts despite the NMPA’s consistent efforts to police its members’ rights.

Three Hundred Thousand Infringing Tweets Are Just the ‘Tip of the Iceberg’

The lawsuit, which was publicly announced the day it was filed as part of the NMPA’s annual meeting, accuses Twitter of monetizing infringing content through its platform to increase the social media company’s advertising revenues. The complaint includes a series of screenshots from the Twitter platform that depict several promoted posts and accounts positioned near to posts containing infringing material. While Twitter began as a platform for short text-only messages, audio and video content have become main drivers of online traffic to the platform. The NMPA’s suit notes that Twitter encourages users to upload video and audio files directly to the platform, creating unauthorized copies of the copyrighted songs on Twitter’s servers that are then synchronized to the social media platform.

Twitter engages in constant monitoring of its platform to remove violent and abusive content, the NMPA’s lawsuit points out, but it has refused to remove content from posts despite receiving many takedown notices sent by the NMPA. Since December 2021, the NMPA has been submitting takedown notices to Twitter on behalf of its members on a weekly basis and the organization states that it has identified more than 300,000 infringing tweets in such notices. Despite this heavy volume, the NMPA indicates that this represents just the “tip of the iceberg” regarding the sum of copyright infringing content posted to Twitter.

Some particularly egregious examples of the lacking response from Twitter involve the 2020 alternative rock song “Heat Waves” by Glass Animals. Despite consistent takedown notices, there were 95 infringing tweets including content from “Heat Waves” that have not been removed from Twitter’s platform as of the lawsuit’s filing, including one tweet that was first notified to Twitter by the NMPA in March 2020. Another example involves the classic Louis Armstrong hit “What a Wonderful World,” which has been infringed by 240 tweets of which Twitter was notified. More than 120 infringing tweets remained one month after the NMPA’s takedown notice, and two dozen remained online two months following the notice.

Twitter Reaps Ad Revenues While Dragging Its Feet on ‘Abysmal’ Enforcement Efforts

The NMPA called Twitter’s efforts to address these infringements “abysmal,” even more so because of the public statements that Twitter has made to government officials regarding its supposed efforts to combat copyright infringement. The complaint alleges that there are thousands of instances in which Twitter did not act on a takedown notice sent by the NMPA for more than one month.

“Twitter’s incentive not to act expeditiously is clear. Twitter wants to maximize the benefit it receives from the infringing content on its platform before the tweet is deleted. As a general proposition, the value to Twitter of a tweet decreases over time.”

Although Twitter maintains a Copyright policy governing user activity on its platform, the company removed language in August 2018 stating that users could have their accounts terminated for repeated acts of copyright infringement. While suspensions remove access to Twitter accounts, the NMPA charges Twitter of giving preferential treatment to accounts with large numbers of followers that regularly post infringing content. The NMPA’s lawsuit gives examples of several accounts active for more than a decade, each of which have been the subject of about two dozen takedown notices by the NMPA. None of these accounts have been disabled despite the lack of a counter-notice to the NMPA’s takedown as required by the Digital Millennium Copyright Act (DMCA).

Twitter’s Lack of Licensing Arrangement Unique Among Digital Services Companies

New executive leadership at Twitter has been outspoken on its negative views of copyright law. The NMPA’s suit points out that Elon Musk, who acquired Twitter last October for $44 billion, posted comments through his Twitter account in May 2022 indicating his beliefs that “[c]urrent copyright law in general goes absurdly far beyond protecting the original creator” and that “[o]verzealous DMCA is a plague on humanity.”

The regime change kickstarted by Musk’s acquisition of Twitter last year has brought with it a great amount of turnover impacting the company’s ability to respond to the NMPA’s takedown notices. While 7,500 people were employed by Twitter last October, recent reports indicate that fewer than 2,000 employees remain with the company. A pair of executive staff resignations from Twitter’s trust and safety team during that time further underscores the company’s current inability to create and implement sound policy judgments, according to the NMPA.

The exclusive rights afforded to copyright owners, especially music publishers, under 17 U.S.C. § 106 include the right to control publication through either mechanical licenses to reproduce and distribute songs or synchronization licenses to use songs in connection with video. Many of the publishers included as plaintiffs in the NMPA’s complaint have entered into agreements for such licenses with several other social media companies including Facebook, YouTube and TikTok. The recent passage of the Music Modernization Act and its establishment of a Mechanical Licensing Collective to administer blanket licenses to streaming companies on behalf of music publishers makes Twitter an outlier among digital services companies for not operating under a music licensing arrangement.

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