Attorney, The Creekmore Law Firm PC

This week Twitter released its “Transparency Report,” which provides a snapshot of government requests for information and content removal – i.e., the Big Brother Report – as well as copyright takedown notices issued to the social media giant pursuant to the Digital Millennium Copyright Act (DMCA).   Although government practices that may or may not be deemed to intrude into individual rights, freedoms and privacy may well pique the interest of some, we’ll sidestep that foray into debate-laden and politically charged waters and look at the relatively safe harbor (pun intended, see below) of copyright takedown notices and results reported.

First, a quick tutorial to get everyone up to speed, then a comment on Twitter’s numbers.  In 1998, Congress enacted the DMCA as part of a larger body of law dealing with on line sources of copyright infringement, extending the provisions, rights and remedies of the Copyright Act to the Internet while providing some necessary modifications and limitations for those operators who, essentially, make the Internet available and fun for its users.  Included within those modifications and limitations  is a safe harbor, or exemption, from liability for Internet service providers who comply with the DMCA’s provisions for enabling copyright owners to seek relief for infringement of their work on line.  To qualify for the DMCA safe harbor exemption, an on line provider of  Internet services allowing for the exchange of user-posted information (such as YouTube, Twitter, Facebook and other similar forum providers and web hosts) must provide certain notice opportunities and takedown procedures for copyright owners who believe their work is being infringed as well as response opportunities for those whose posted content is being challenged.  Specifically, the provider must give reasonable and adequate notice to its users of its policies regarding copyright infringement and the consequences of infringing activity, including, particularly, that their content may be removed upon receipt of a takedown notice.  Most often, this notice is provided initially in the clickwrap agreement to which users must agree before utilizing the service.  (For more on the perils of such agreements, see here.)  To guard against overreaching by copyright owners, the safe harbor provisions also require notice to users whose materials have been removed and an opportunity to submit a counter-notice arguing for non-infringement, which swings the pendulum back to the copyright owner.  The owner then must file suit within fourteen days or the service provider must restore the material to its original location on its network.

Now, for the copyright numbers.  Twitter’s report reflects that copyright takedown notices issued to it during the first six months of 2013 soared by 76%  over those received during the last six months of 2012.   Overall, Twitter reports that 61% of the notices resulted in material being removed from over 22,000 user accounts.  (Twitter notes that it does not comply with notices that fail to provide sufficient information from which Twitter can locate the allegedly infringing material on its service, or takedown notices that are improperly used to complain about conduct other than copyright infringement.)  Specifically, over 18,000 tweets were removed and nearly 4,000 media files – including profile photos, header photos, background images, images and Vine videos, among others – were taken down.  In each of the cases reported, Twitter provided users notice of the takedown request and removal as well as instructions on how the user could submit a counter-notice to protect non-infringing material.  In total, of the 5,700+ takedown notices received, Twitter received just 6 counter-notices by users arguing their material was non-infringing.  In all 6 of those cases, the material was restored.

So, what do the numbers tell us?  First, content owners are becoming increasingly more vigilant about policing their work on line.  At the top of the list of those providing takedown notices are Remove Your Media and the Recording Industry Association of America, together providing 20% of the total takedown notices Twitter received.  Music, film, software, video games and ebooks comprise the lot of digital media protected by these groups and most likely improperly used by the casual Internet user.  These content providers understand the system, have administrative methods in place for policing and enforcing their rights through the DMCA, and need to do so in order to protect the value of their investments.  The DMCA makes such policing and enforcement activities simple and inexpensive, with forms provided and an effective channel of communication for providing the notice of infringement to the Internet provider.

But – and here’s perhaps the more interesting note – only 6 users availed themselves of the counter-notice provisions to combat the take down.  That’s only .1%.   So, either the entire population of take down recipients know that what they did was wrong and simply acquiesced to the removal; or they are too lazy to follow a couple simple steps for returning fire with fire if they believe their content to be non-infringing; or the threat of a lawsuit in return is just too daunting.   For the 6 who did not fall into one of these three categories, however, and pushed the ball back across mid-field by filing their own counter-notices, ALL 6 had their material restored.  Remember, once a counter-notice is returned, the content provider making the original complaint MUST bring suit within 14 days, or the Internet provider MUST restore the materials.  So, from this 100% success rate for counter-notices, we can surmise that either the content provider was overreaching in its first shot, it determined the material truly was non-infringing and elected not to pursue the matter, or it determined that the time and expense of pursuing the claim in court outweighed the benefits to be achieved and simply dropped the matter.

The lesson to be learned from Twitter’s Transparency Report, then, is that (in addition to Big Brother) the digital content originators are watching and know the process for achieving quick results when their and their clients’ content is infringed.  By the same token, for those users who believe in the non-infringing nature of their posted material, or who just want to test the mettle of the content owners, the 2013 stats thus far suggest a counter-notice may well be a quick and easy method of having their material restored.

Just keep in mind, playing a litigation game of chicken with the likes of the RIAA or other digital media giant is not for the faint-of-heart or shallow-of-purse.  Receiving a copyright infringement suit filed in a United States District Court – including in a state potentially far away from the user’s residence – carries with it the immediate prospect of thousands upon thousands of dollars in attorney’s fees and costs merely to respond, with many more tens or hundreds of thousands of dollars required to defend, plus the potential for damages ranging in the tens of thousands or more per instance of infringement, plus payment of the other side’s attorney’s fees as well, if the content owner prevails.

Oh, the power and risk of those innocuous little 140 character messages.

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