Twitter Narrows, But Doesn’t Completely Avoid, a Dangerous Copyright Lawsuit–Concord Music v. X

Music publishers sued Twitter for users’ alleged copyright infringement. The court says that three aspects of the contributory copyright infringement claim survive Twitter’s motion to dismiss.

Direct Copyright Infringement. The publishers argued that Twitter “transmitted” their works. The court says the tweeter does any “transmitting,” not Twitter or the viewer. This diverges from the Aereo ruling where the only players were the broadcaster, the viewer, and Aereo, so there wasn’t a fourth entity to throw under the bus. The court explains this and other differences from Aereo:

• “Aereo involved a system designed for the sole purpose of transmitting the subject content and which had no plausible utility, in that configuration, other than the transmission of that content, whereas X/Twitter is a social media site with a range of potential uses.”
• “Aereo involved the removal of copyright-protected works from their usual channels of distribution by the defendant, even if that diversion was only completed when directed by an end user. Aereo effectively inserted itself as an unauthorized intermediary directly between authorized broadcasters and unauthorized viewers….if anyone other than the end consumer engaged in unauthorized “transmission,” it had to be Aereo. Here, in contrast, the infringement was, in each cited instance, initiated by a third party other than either X Corp. or the ultimate consumer of the infringing material. X Corp. argues that the X/Twitter users who selected the copyright-protected material, obtained it, composed the underlying tweets, and chose to post those tweets were the ones doing the transmitting.” [A reminder that there were no “unauthorized viewers” in Aereo’s scheme. The viewers were watching over-the-air broadcasts that the broadcasters made freely available for them to watch.]
• “Aereo was, in a sense, an easy case. Congress specifically outlawed something, and the defendant was doing more or less that precise thing, with a few superficial tweaks.” [It’s the “more or less” that is the crux of my problem with the court’s opinion in Aereo. If the statute didn’t cover Aereo’s unique implementation, then the statute doesn’t apply.]
• The “plaintiffs’ allegations, in contrast with the bilateral transmission relationship at issue in Aereo, require the court to consider the respective roles of three parties: one who sent protected material, one who received it, and a third party, X Corp., that continuously operated the platform through which that infringement—and numerous other, non-infringing communications—occurred.”
• “There is no plausible case that X/Twitter is the “equivalent” of a cable company in the manner that Aereo—which had no meaningful existence other than as a copyright workaround for television broadcasts—was.”

Sadly, the court didn’t and couldn’t say what’s on all of our minds: that the Aereo decision was wrong.

The court summarizes:

X/Twitter, unlike Aereo, did not “transmit” any of the allegedly infringing material in the manner of a cable provider, because it was not the party that initially diverted that material from the intended channels of distribution. X/Twitter was more like a telephone company—providing the mechanism for communication between independent communicators—than like a cable company that actively selects material to make available. The purpose of the Transmit Clause, the Supreme Court acknowledged, was to “erase[] the . . . line between broadcaster and viewer,” but X/Twitter was neither of those things. It was a carrier…

I guess that’s a way to resolve the analysis–but not exactly a satisfying way. Twitter isn’t like a “telephone company” or a “carrier” because it hosts the relevant materials, which phone companies don’t do…and Aereo did. That’s a pretty fundamental factual distinction. But don’t blame this court for the dubious rationale. Blame the Supreme Court for its problematic decision in Aereo.

[An aside: it’s hard to believe the Aereo opinion is a decade old. Time flies.]

Contributory Copyright Infringement. The publishers tried a number of tired/old-school arguments that would categorically hold UGC sites liable for user-caused copyright infringement. The court doesn’t take the bait:

• The court rejects the argument that “merely hosting infringing content, until it is subject to a takedown notice, constitutes “materially contributing” to infringement under current law.”
• The court also rejects the argument that “the operator of a social media platform materially contributes to infringement simply because there are some preventive steps that the operator could have taken but did not.”
• “while the plaintiffs make much of X/Twitter’s monetization of infringing tweets by surrounding them with paid-for promoted material, there is no allegation that those practices were meaningfully different than those X/Twitter applied to monetize popular, but entirely non-infringing, tweets”
• “The plaintiffs complain that it is too easy to upload infringing audiovisual files onto X/Twitter, but, again, the plaintiffs are simply discussing a general feature of the platform. They do not allege that it is easier to post an infringing file than a non-infringing one.”

The court summarizes: “Many of the supposedly problematic practices that the plaintiffs identify are unremarkable features of X/Twitter generally that X Corp. has simply failed to fence off completely from infringers.” The DMCA online safe harbors have mooted most of these arguments in practice, but the court says they don’t work as a matter of the prima facie elements either.

Also, the court says: “Any feature that makes a service easier for all of its users will, by definition, also make the service easier for bad actors. The plaintiffs have not identified any basis for concluding that X Corp. was obligated to make its service worse for everyone, just to punish the people who misuse it.” For more on this point, see my Assuming Good Faith Online piece.

Nevertheless, the publishers identify three places where the allegations survive the motion to dismiss:

• The allegation that “X Corp. enforces its copyright policies less stringently against individuals willing to pay for its “verified” service.”
• The publishers sent takedown notices for over 300k tweets, and they claim Twitter has been sometimes dilatory in its response. The court survives the allegation that “X Corp. engaged in egregious delays in responding to valid takedown notices, or outright ignored some notices that were both facially and actually valid….The fact that some delay may be appropriate, however, is not an unlimited license to drag one’s feet inordinately or forever.”
• The allegation that “X Corp. engaged in contributory infringement by failing to take meaningful steps to address the actions of severe serial infringers….The plaintiffs have alleged that there was an identifiable subset of X/Twitter users who openly and obviously used the service as a tool for repeatedly posting infringing content, but X Corp. affirmatively declined to take reasonable steps in response to those users’ actions….If, however, there was a class of X/Twitter users who were brazenly using the platform as an infringement tool, and X Corp. made the decision to unreasonably withhold enforcement of its own policies against those users, with the foreseeable consequence of ongoing infringement, then X Corp. could plausibly be held contributorily liable.”

On the latter point, the court nevertheless makes some defense-favorable points:

Nothing in the Complaint is sufficient to plausibly suggest that a social media platform like X/Twitter has an obligation to suspend or terminate the account of every person who infringes more than once, or even every user who infringes a number of times. Like delays, however, recidivism can exist in degrees….there is no basis in the law for concluding that the operator of a social media platform will face liability simply because it was less draconian in its enforcement than copyright holders would prefer

Vicarious Copyright Infringement. The court narrowly views the degree of culpable control/supervisory power:

The plaintiffs do not allege that X Corp. had the power to oversee users’ actual drafting of the relevant tweets. Nor do they allege that X Corp. had the power to oversee users’ efforts, if any, to obtain authorization from copyright holders before tweeting. The plaintiffs also do not allege that X/Twitter had editorial control over the content of tweets, other than making the yes-or-no decision of whether or not to remove a tweet after it was posted and brought to X Corp.’s attention…

X Corp. undoubtedly had some power over X/Twitter’s users—the way that a company that provides a valued service always has power over the customers who rely on it—but that does not turn customers into even loose equivalents of agents or subordinates.

Implications. Overall, Twitter dismissed much of this case. The court rejected the publishers’ core attempts to overturn decades of precedent and impose copyright liability for basic online functions. Still, surviving the motion to dismiss is a potentially net strategic loss for Twitter.

First, the court didn’t rule on the DMCA online safe harbors, so those remain theoretically available to Twitter. However, if the publishers can show sufficient evidence to support their surviving claims, that evidence will also likely disqualify Twitter from the safe harbors.

Second, by getting past the motion to dismiss, the publishers now can engage in discovery. I imagine they will be thorough. If the publishers find any smoking guns, we’ll hear more about them. And given Twitter’s size, venerability, and post-Musk reductions in T&S staff, I imagine there are some smoking guns to be found. As a result, this case still poses substantial risk to Twitter and the entire Internet ecosystem.

Case Citation: Concord Music Group, Inc. v. X Corp., 2024 WL 945325 (M.D. Tenn. March 5, 2024)