Mike DunfordHey @mmasnick - do you think "suspend people who file DMCA takedowns against accounts" is the kind of repeat offender policy that §512(i) envisioned?
Asking for...
..I'm sure you can guess.
Kathleen Lu@questauthority @mmasnick I actually can't think of a reason why suspending an account that sends a bogus takedown would be any riskier than not taking the material down or restoring it after determining the takedowm was bogus.
He's not doing careful evaluation, of course, but the suspension part doesn't seem to be the main problem...
He's not doing careful evaluation, of course, but the suspension part doesn't seem to be the main problem...
I'm not sure it does implicate (i) but I'm also not sure it doesn't.
The account on the receiving end of this DMCA seems to specialize in scraping other people's content and republishing it with an attribution tag but not any direct link to the source. It's been, by its own admission, a repeat subject of DMCA takedowns.
And Elon announced that the account won't be banned.
Mike Masnick ✅@questauthority @kathleenthelaw it looks like it wasn't scraped, but was using the original upload, which twitter enables...
@mmasnick @kathleenthelaw
Yeah, I think _probably_ the use was within what Twitter sublicenses to other users.
But it's incredibly easy to see how someone could get pissed off at the reuse and make a good-faith mistake on this one. The re-user is a leech who built their following by aggregating other people's stuff and providing credit in ways that makes locating the original harder than it needs to be. This looks exactly like the kind of good-faith mistake 512 is supposed to protect.
@questauthority @kathleenthelaw stop pre running my post, Mike. 😛
@mmasnick @kathleenthelaw It's not my fault you picked a relatively easy one this time, Mike. 😂
@mmasnick @kathleenthelaw Serious note, though:
IIRC, when I looked at this issue and reached a conclusion that this kind of scraping is probably within the Twitter license, I could only get to "very probably," and I had to read both the TOS and some of the developer policies to get there.
I don't think this is an area where it's immediately obvious that the reuse is allowed.
@questauthority @mmasnick sure, but good faith under 512 protects the reporter from being *sued*, I don't think it applies to *being kicked off a private platform*. To make that case, 512 would need to give you a due process right to...not be kicked off Twitter 🧐
@questauthority @mmasnick I think 230 here protects Musk's right to kick anyone off for any reason, *even including sending valid DMCA notices*
I'm back to where I started, which is that the suspension is legally irrelevant. What matters for 512 immunity is whether the material is removed.
I'm back to where I started, which is that the suspension is legally irrelevant. What matters for 512 immunity is whether the material is removed.
@kathleenthelaw @mmasnick I think he's fine with regard to this guy. I also think his blanket statement about how they'll handle "abuse" is going to be problematic for the repeat offender policy. Especially in combination with this incident.
@questauthority Why? Obviously he's running some accuracy risks with any actual implementation, but the repeat infringer termination policy just has to be appropriate re terminating repeat infringers. Nothing about reporters. Looking at the plain words of his statement, "egregious weaponization" doesn't sound like reports of actual infringement. Even if they were, one could totally have a policy of suspending copyright trolls *completely separate* from a policy of suspending repeat infringers.
@kathleenthelaw The problem with the plain words of his statement is that there's no reasonable way to read the statement separately from the earlier incident and his response to it.
If he sticks with the as-stated policy, he's probably fine. But if he implements the policy more consistently with the actions he took - protecting a high-follower, paying customer with multiple other unrelated strikes - I think it's problematic.
@questauthority sure, but that's a *different* problematic policy (that he may well do, but was left unstated). The thing that would get him in trouble there is the *failure to suspend* a repeat infringer, not "acting to suspend the reporter*. A policy of suspending the *reporter* is still legally irrelevant.
@kathleenthelaw "does not interfere with the copyright owners' ability to issue notices" is a factor that's been considered when "reasonably implemented" under 512(i) is being examined. Capitol Records v. MP3tunes 821 F. Supp. 2d 627, 637 (SDNY 2011).
I think there's a good argument that threatening copyright owners with bans for takedowns that don't meet the 512(f) bad faith threshold chills and interferes with reporting, and isn't a reasonably implemented repeat offender policy.