Twitter’s longstanding refusal to secure music licensing rights has come to a head with a lawsuit accusing the company of mass copyright infringement.
The three major music conglomerates — Universal, Sony and Warner — joined by a host of other publishers, on Wednesday sued Twitter for at least $250 million over the alleged infringement of roughly 1,700 works for which it received hundreds of thousands of takedown notices. They allege the company “consistently and knowingly hosts and streams infringing copies of music compositions” to “fuel its business.” Twitter has rebuffed calls for it to obtain the proper licenses, according to the suit.
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Twitter is the lone major social media platform without music licensing deals, which permits those sites to legally host videos and other content featuring publishers’ music. Facebook, Instagram, TikTok, YouTube and Snapchat have all entered into agreements that compensate creators of musical compositions for use of their work.
The suit filed in federal court in Tennessee accuses Twitter of intentionally fostering a user base that posts video overlaid with copyright-protected music to “retain account holders and viewers” and “grow the body of engaging tweets” on the platform. “Twitter then monetizes those tweets and users via advertising, subscriptions, and data licensing, all of which serve to increase Twitter’s valuation and revenues,” states the filing.
The complaint points to a tweet from a known repeat offender who has been the subject of at least nine infringement notices to Twitter. The publishers say Twitter has profited off of the infringement by posting a “promoted” tweet directly below the post and recommending a paid “promoted” account directly to its right.
In marketing and securities filings, Twitter has represented that video drives high levels of engagement and that the majority of its users watch video content.
“The availability of videos with music, including copies of Publishers’ musical compositions, furthers Twitter’s financial interests both because it drives user engagement, and thus advertising revenue, and because Twitter does not pay fees to license musical compositions from Publishers and other music rights holders,” writes the publishers’ lawyer Steven Riley in the suit. “Indeed, providing free, unlicensed music gives the Twitter platform an unfair advantage over competing platforms.”
In December 2021, the National Music Publishers’ Association, acting on behalf of the publishers, began sending formal infringement notices to Twitter on a weekly basis, according to the complaint. The company was notified of over 300,000 infringing tweets. Despite this, Twitter “often waited weeks, a month, or even longer” before removing the posts “if it acts at all,” the suit says.
The publishers stress that Twitter failed to implement a policy to terminate repeat infringers. In its policy, the company addresses issues concerning copyright complaints, including what happens to accounts that receive one or more copyright complaints, but neglects to carry a warning to users that they may be terminated for repeat infringement despite having one prior to 2019.
“Users who repeatedly infringe copyrights do not face a realistic prospect of permanently losing access to their accounts on the Twitter platform,” the suit states. “Rather than terminating access to specific users brought to its attention as infringers, which would have stopped or limited their infringement and deterred others from infringing, Twitter has operated its platform to be a haven for infringing activity.”
Under the Digital Millennium Copyright Act, Twitter can limit its liability over infringement by its users but only if it took reasonable steps that provide for the termination of accounts held by repeat offenders. Production companies have been taking Verizon Wireless, AT&T and Comcast to court for allegedly facilitating mass piracy of their movies, arguing that the internet service providers aren’t protected by the DMCA, which provides for notice and takedown of content that infringes on copyrights, because they turned a blind eye to customers who illegally distribute and download pirated films.
Anticipating a fair use defense from Twitter, the publishers also argue that the purpose of using their music on Twitter is to maximize views and make posts more compelling, “not to engage in political or newsworthy speech, or commentary or criticism.” They cite a tweet with the official music video of Rihanna’s “Umbrella” that states, “15 years ago, Rihanna released ‘Umbrella.’” The post got 221,000 views and nearly 15,000 likes.
Last year, Elon Musk tweeted that “current copyright law in general goes absurdly far beyond protecting the original creator,” according to the complaint.
The suit, which seeks $150,000 for each infringed work, claims direct copyright infringement, contributory infringement and vicarious infringement. The 17 publishers that sued are represented by the National Music Publishers Association. They include Anthem Entertainment, Big Machine Music, BMG Rights Management, Kobalt Music Publishing America and Spirit Music Group, among others.
In a statement, NMPA president David Israelite said Twitter “knows full well that music is leaked, launched, and streamed by billions of people every day on its platform.” He added that the company can’t “hide behind the DMCA.”
Twitter was exploring the licensing of music rights from three major labels before Musk’s takeover of the company, The New York Times reported in March.
In a letter to then-CEO Jack Dorsey sent in 2021, more than 20 members of Congress called on the company to adopt “robust content protection technology” to decrease the posting of infringing content. Twitter in January was hit with a similar suit from celebrity photo agency Backgrid over the alleged infringement of thousands of its photographs by users on the platform.
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