“The translation seems to be that Twitter feels they are not a publisher, just a private platform that censors what they dislike, and they don’t dislike copyright infringement unless and until a DMCA notice is provided.”
On December 28, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, and Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, sent another letter to Twitter CEO Jack Dorsey expressing disappointment over the company’s continued refusal to cooperate on hearings around copyright reform. Tillis and Coons were joined by Senator Mazie Hirono (D-HI), as they often are on IP issues. The letter reiterated the senators’ frustration that Twitter refused to provide a witness for the IP Subcommittee hearing on December 15 focused on the role existing technology plays in curbing online piracy.
In an all too kind characterization, the letter sent by Senators Tillis, Coons and Hirono also expressed disappointment with the “incomplete responses to written questions sent by Chairman Tillis in advance of the hearing.” Frankly, the “answers” to the questions presented by Chairman Tillis by Dorsey for the record were completely non-responsive. Indeed, Dorsey demonstrated complete disinterest in substantive engagement, an absolute lack of good faith, and conscious disregard—near contempt really—for the duty of candor owed by witnesses to the Subcommittee.
Dodge and Deflect
Witness this direct question by Chairman Tillis to Twitter prior to the December 15 hearing, which was presaged by recognition that Twitter has been enormously effective with respect to censoring conservative voices on its platform: “Don’t you think that if Twitter can track and take down political content that it also has the ability to take down content that infringes the IP of hard-working American creators?”
At no point during Dorsey’s response did he mention the conscious political censorship Twitter has engaged in, which was taken to new heights only recently with the complete censorship of the New York Post, one of the oldest publications in the United States, which reported a story relating to Hunter Biden, the son of President Elect Joe Biden. Instead, Dorsey claimed that “Twitter will respond to reports of alleged copyright infringement” and pointed to “transparency reports” and then further claimed that “allegedly infringing material is a small fraction of the total Tweets uploaded to Twitter.”
The question, however, was why Twitter is able to proactively on their own volition take down conservative political speech and why they treat content that infringes the intellectual property rights of American workers differently. Perhaps there is an articulable Twitter position that could offer some explanation regarding the difference between political censorship and taking down infringing content, but no such explanation was forthcoming. Indeed, there was no response to the question other than a vague, indirect, passing reference that implied that the Digital Millennium Copyright Act (DMCA) doesn’t require Twitter to be proactive with respect to infringing material. Why it is easy to, on their own, remove conservative Tweets and content—the focus of the question— remains unanswered.
And so went every other question posed by Chairman Tillis.
“Can you tell me about the number of human moderators you have at Twitter, and how many are working on copyright infringement?” Tillis asked. Dorsey simply refused to answer the question, which obviously sought an approximate real number of some kind, which someone at Twitter obviously knows or can access. Dorsey’s complete response was:
Twitter uses a combination of machine learning and human review to adjudicate reports of violations of the Twitter Rules and make determinations on whether the activity violates our rules. With hundreds of millions of Tweets sent every day, we recognize that engaging in content moderation at scale requires increased use of machine learning and algorithms to surface and take action against violations of our rules. Thus, we continue to invest in efforts to automate content moderation. As a result of these investments, more than 50 percent of Tweets we take action on for abuse are now proactively surfaced using technology, rather than relying on reports to Twitter.
If this were testimony in a courtroom the answer would be struck from the record as being nonresponsive to the question and the witness instructed to answer the question.
Dorsey’s Non-Responses Undermine Section 230 Defense
Obviously, these issues are of great importance for a variety of reasons, not simply because of the copyright reforms being considered by the Senate IP Subcommittee, but also because of what will be the push to reform or eliminate Section 230 of the Communications Decency Act, a section that provides safe harbor immunity to platforms because they can’t possibly be expected to moderate all the content that their users post. But the raison d’être for such immunity provided by Section 230 has been effectively undermined by the political censorship of Twitter and other platforms. Twitter is obviously capable of censoring at least some viewpoints and Tweets of their own volition, even putting caution messages on certain Tweets as part of their own fact-checking endeavors. Still, they frustrate the attempts of intellectual property rights holders at nearly every turn, and they do nothing, it seems, to proactively stop infringement on their platform. Why?
Twitter seems to consciously hide behind the DMCA with respect to intellectual property infringement and claims it is not a publisher. “Under Section 230 of the Communications Decency Act, services like Twitter are not considered publishers for hosting content by third parties,” Dorsey explained in his “answers” to questions posed by Chairman Tillis in advance of the December 15 hearing. “This protection allows us to act responsibly to promote healthy conversations by taking action against misinformation, abuse, harm and illegal activity that makes its way onto Twitter…” The translation seems to be that Twitter feels they are not a publisher, just a private platform that censors what they dislike, and they don’t dislike copyright infringement unless and until a DMCA notice is provided, but they affirmatively make it difficult for rights owners before and after the fact—even large industry groups like the RIAA—to seek redress by not providing an API and lacking even a modicum of transparency when dealing with copyright owners.
Not a Matter of Degree
The comparison between censoring the accounts of high-profile conservative figures and certain media publications may at first glance seem to be a different order of magnitude when compared to addressing all infringing content on Twitter because the former is arguably easier to identify than the later. But such a characterization misses the mark for several reasons. First, and most obvious is that Dorsey could have but did not raise this in his response to Senator Tillis, choosing instead to ignore the censorship issue as if it never happened. Second, copyright owners seem willing to police their own copyright material, but cannot because Twitter frustrates their attempts by refusing to provide an API, which was provided by Twitter until a few years ago. Finally, the question about Section 230 immunity isn’t about scale. Platforms are either intended to be hands off, or they are not hands-off, and they are publishers. Twitter wants to have it both ways, as a platform when convenient for infringement purposes, and as a publisher when convenient to weed out political speech it does not like.
Twitter’s business model is perfectly fine. The company can choose to prevent conservatives from posting certain items or want to place warnings on Tweets based on fact-checking or suspend the accounts of media who refuse to delete Tweets they find objectionable. What is problematic, however, is acting like a publisher with respect to some content and then seeking to cloak themselves with the shroud of immunity provided by Section 230 for platforms.
To Whom Will Twitter Listen?
Senators Tillis, Coons and Hirono were not impressed with these responses. Indeed, their letter of December 28 quotes the testimony of Keith Kupferschmid of the Copyright Alliance: “if Twitter will not respond to even… a senator or to a chairman of a subcommittee’s request to show up and listen, how are we going to get them to listen to us or listen to the wedding photographer or the songwriter?” A very good question, and one that the Senate IP Subcommittee should be asking, as well as antitrust regulators around the country.
The Senators set forth 12 specific questions for Dorsey to answer in their letter. They are:
- We have heard that locating all instances of infringing content on your platform without access to Twitter’s API is difficult if not impossible. Does Twitter make access to its API available to content creators for purposes of enforcement of their intellectual property rights? If so, under what terms? If not, why not?
- Does Twitter charge for access to its API for purposes of enforcing intellectual property rights? If so, please provide a schedule of fees charged by Twitter.
- We heard testimony that “over the past two years, the music industry has sent Twitter notices of over 3 million infringements for over 20,000 works.” What steps has Twitter taken to ensure no unlicensed music is made available through its platform? Does Twitter employ any software—similar to YouTube’s ContentID or Facebook’s Rights Manager—to screen for copyrighted content? If so, please describe the software and its role in identifying, blocking, or notifying content owners about infringing material.
- Does Twitter seek licenses for the use of music on its platform? If so, under what circumstances? Has Twitter made efforts to negotiate license agreements with music publishers and record labels to ensure songwriters and artists are compensated?
- Please describe the processes available for submitting a takedown notice to Twitter. How many pieces of infringing content can be included in a single takedown notice? To the extent there are limits, please explain why.
- In response to Chairman Tillis’s questions, Twitter wrote that it has received 822,125 takedown notices since 2012. Please provide the number of takedown notices received and the number of tweets identified in those notices as including allegedly unauthorized content by year since 2012, including the number of notices received and tweets identified in 2020, if available.
- On average, how long does it take Twitter to remove infringing content in response to a takedown notice?
- In response to a question posed by Chairman Tillis regarding voluntary agreements Twitter has entered into with copyright owners to help combat copyright piracy on its platform, Twitter wrote that it “has many discussions with industry partners, some of which result in successful partnerships.” Please identify all such voluntary agreements Twitter entered into with copyright owners to help combat copyright piracy on its platform.
- Please provide our offices with a copy of Twitter’s repeat infringer policy.
- How many human content moderators does Twitter employ to address claims of copyright infringement on its platform?
- Does Twitter employ any proactive measures to combat copyright infringement on its platform? If it does, please describe those measures.
- We have learned of Twitter accounts dedicated to the distribution of leaks of pre-release media in the form of 20-30 second segments of audio or video recordings. These segments serve as advertisements for the availability of the full-length, unauthorized pre- release content on a pirate service. Do such accounts and tweets violate the Twitter Rules? Why or why not?
Is anyone going to hold their breath waiting for good faith answers from Twitter? I personally expect more of the same evasive, non-responsive verbosity from Twitter. Hopefully Twitter and Dorsey will prove me wrong, but having chosen to begin to police the platform opens up serious questions about the need for Section 230 immunity and whether Twitter and other platforms are employing policies that de facto monetize copyright infringement.
Unless and until political leaders say enough is enough, the tech oligarchs that increasingly tell Americans what is true, how to think, and will run roughshod over Congress and the United States. Bravo to Senators Tillis, Coons and Hirono for trying.
Image Source: Deposit Photos