Twitter, the DMCA and Copyright in the Age of Sharing

As social media platforms continue to find new ways to allow users to share, post, and forward nonoriginal content and users become more engaged in the practice, the platforms hosting the content and disgruntled original content owners are bound to clash. In the past, Google, YouTube and others have been targeted for allowing users to post copyright-protected material, and ordered to remove the objected to material. A recent case filed in the Central District of California involves similar allegations against social media powerhouse Twitter. In Pierson v. Twitter, Inc., the plaintiff alleges that users tweeted her copyrighted image and that Twitter failed to remove the infringing material.

Pierson, who alleges she is a photographer specializing in event and live-music photography, contends her business relies on the licensing and selling of her photographs of famous musicians and bands. Pierson sells and commissions her works on her website.

Pierson further claims to be the copyright holder and owner of a still photograph of Herman Li, the guitarist for Dragonforce. Under the Copyright Act, as the copyright owner for the photograph, Pierson would enjoy exclusive rights to reproduce, display, distribute or prepare derivative works. But according to Pierson, Twitter users reproduced the Herman Li photograph, distributed it by attaching it to tweets, and displayed the photograph on Twitter, all without obtaining a license from Pierson and all in violation of her copyright.

Pierson asserts claims for secondary copyright infringement against Twitter, claiming Twitter induced, “caused or materially contributed to” users’ violations of her copyright. Pierson claims she gave Twitter notice of the infringing uses under the Digital Millennium Copyright Act  (DMCA), but Twitter did not remove all of the infringing images.

The elements of Pierson’s contributory infringement claim include proof of direct infringement, knowledge and material contribution. Assuming the Twitter users actually uploaded Pierson’s copyrighted image to Twitter, that act satisfies the direct infringement element. (See, e.g., Columbia Pictures Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013).) The knowledge element can be satisfied if Pierson establishes that, as alleged, she provided actual notice to Twitter that the infringing material was available on their site. (Perfect 10 v., Inc., 508 F.3d 1146, 1172 (2007).) The material contribution element can be satisfied by simply being displayed without permission on Twitter or on a third-party website linked to Twitter via a post from a user. For example, in Perfect 10, the Court held that Google materially contributed to infringement of copyrighted photographs because it “assists a worldwide audience of users to access the infringing materials.” (Id.) Pierson’s complaint has at least pled the elements of a contributory infringement claim. Whether her claim can or should survive past that point is a different matter.

Pierson’s inducement claim, however, is deficient on its face. The elements of Pierson’s inducement claim are: distribution, infringement, causation and an object of promoting its use to infringe. The Twitter users’ alleged reproduction of Pierson’s photograph likely satisfies the reproduction element. (Columbia Pictures, 710 F.3d at 1033.) As noted above, users satisfy the “infringement” element by uploading the infringing photographs. (Id.) The only causation element is that the service was used to infringe, as plaintiff alleges. The most dispositive element requires that plaintiff show that the device is distributed “with the object of promoting its use to infringe.” (Id. at 1034.)

This high bar can only be demonstrated with evidence of “clear expression or other affirmative steps taken to foster inducement.” (Id.) Specifically, in the analogous Perfect 10 case, the Court did not find Google liable for inducement, concluding that Google did not promote the use of its search engine specifically to infringe copyrights. (Id. at 1170 n. 11.) In this case, Pierson will have a difficult time demonstrating that Twitter marketed use of its site to infringe copyrights. Thus, Pierson’s inducement is likely to fail.

There are also strict limitations on secondary liability under the DMCA for Online Service Providers (OSPs) who meet certain criteria. Pierson’s allegations that she notified Twitter multiple times and asked it to remove the offending material but that Twitter failed to respond or act is an attempt to plead around the safe harbor provisions in the DMCA. Since Pierson did not attach any of her alleged communications with Twitter to the complaint, it is not possible to analyze her allegations or Twitter’s potential safe harbor defense. But Congress has made clear “that the DMCA was intended to protect qualifying service providers from liability for all monetary relief for direct, vicarious, and contributing infringement.” (UMG Recordings v. Shelter Capital Partners LLC, 718 F.3d 1006, 1028 (9th Cir. 2013).) Toward that end, the DMCA places the burden on copyright holders to identify infringement and notify OSPs. It does not require OSPs to screen their own sites. Thus, the DMCA provides a strong defense from which Twitter should benefit.

Whatever the legal liabilities may be, in a world where posting nonoriginal content is commonplace by fans and critics alike, lawsuits like Pierson’s seemingly pit the interests of all concerned against each other. For instance, Pierson’s interests in controlling the display and use of her copyrighted work and limiting it to uses where she secures a monetary benefit may conflict with the interests of the artist in the picture who may benefit from having fans tweet photographs, stimulate social media traffic on him, and increase his popularity and fan base. Likewise, fans have an interest in connecting with the artists they admire and sharing pictures of artists they like. Social media platforms are similarly situated and likely prefer to be in the business of providing a service, and not in the business of policing millions of posts.

In any event, whatever logistical issues policing their platforms pose, the Pierson v. Twitter lawsuit is a good reminder that the laws applicable to traditional OSPs like Google may also apply to social media platforms. It will be interesting to see how Twitter responds and how the case ultimately gets resolved. For now, social media providers should make sure their policies comply with the safe harbor provisions of the DMCA.