Have you ever had something you posted mysteriously disappear from the internet? It’s a bizarre experience, especially when it’s a result of an overreaching copyright claim. That’s what happened to me this weekend, after I posted a link on Twitter to an interesting (and disturbing) news story at TorrentFreak, a site that writes about copyright and the file-sharing market. The story noted that a tweet posted by TorrentFreak—which contained a link to the an earlier news story about pirated versions of Starz TV shows—had been taken down by Twitter due to a DMCA claim from the entertainment company. Later that day, I got an email from Twitter saying my own tweet had been taken down after a similar DMCA complaint.
I posted a screenshot of the tweet that had been taken down—or “withheld,” to use Twitter’s somewhat Orwellian phrase for when a tweet still exists but has been hidden from view—and encouraged other Twitter users to link to the TorrentFreak article in question. Within an hour, I got another notice from Twitter saying my second tweet had also been taken down due to a DMCA claim. Meanwhile, the Electronic Frontier Foundation said that a tweet it posted linking to the same article had also been removed, and copyright expert and law professor Annemarie Bridy said a similar tweet she posted with a link to the article had also disappeared.
This is Kafka-esque: I posted yesterday about Twitter removing a tweet from TorrrentFreak because it contained a link to an article about pirated copies of Starz shows appearing online (with no links to said content). Twitter has now removed my tweet linking to that story pic.twitter.com/pKF4VCRSit
— Mathew Ingram (@mathewi) April 14, 2019
The main reason for the Starz claim seemed to be that screenshots from the pirated shows were used in the TorrentFreak article. But as a number of copyright experts pointed out, doing so would almost certainly fall under the “fair use” protections of US copyright law, which allow copyrighted material to be used for journalistic purposes.
Shortly after I got the notice Sunday afternoon, I filed a counter-notice, as allowed for under the DMCA takedown process, which Twitter helpfully described in its original notice. I sent an email to Twitter’s copyright team saying I was the legal owner of the tweet in question, and that I believed the tweet had been taken down in error. I heard nothing back from the company, but around midday on Monday, Starz told Variety that it had recently contracted a third-party social monitoring firm after being hacked, and that the contractor had gone overboard. According to the Lumen database, an open-source project that tracks takedown notices, Starz forced Twitter to delete more than 20 tweets over the weekend.
“It appears that in this case, some posts were inadvertently caught up in the sweep that may fall outside the DMCA guidelines,” Starz said in a statement. That seems like it could be just a convenient excuse, however, considering several of the takedown notices—including the ones that came to me from Twitter—referred to Starz directly as the entity that filed them, rather than its third-party contractor, The Social Element, which was referred to in some of the DMCA notices. In any case, most of the deleted tweets started showing up again late Monday.
Many platforms take content down just as Twitter did, as soon as they get a claim, apparently without taking the time to confirm whether the content is actually infringing or not. They do so because the penalties under the act—which gives platforms a so-called “safe harbor” protection against legal claims for the content they host, in return for rapid takedowns—are potentially significant. But the penalties of filing a dubious takedown notice, or taking tweets down when they didn’t need to be removed, are virtually non-existent. The only way Twitter or any other platform would be penalized for such behavior would be if they were sued and forced to defend their actions, which rarely happens. So there’s every incentive to take things down even if they seem like fair use, and zero incentive not to.
In this case, the problem amounted to a few tweets with links to an innocuous news article. But given the recent changes to copyright law in the European Union, this could be just a small glimpse of what is to come. The EU recently passed new copyright legislation that puts the onus on the platforms to remove content that infringes on copyright, or face significant fines. Free-speech advocates warn that this could lead the web companies and social platforms to err on the side of removing content, rather than face the penalty for not doing so. And that could mean even more content takedowns, regardless of whether there is any legal basis for doing so.
More than one Twitter user also noted during the Starz takedown fiasco that Twitter seems to act incredibly quickly whenever there is a copyright claim, but it is considerably more circumspect in responding to complaints about offensive or harassing speech. As one wag put it, anyone who is being harassed online should find a way to make their abusers’ tweets infringe on someone’s copyright, and then they would disappear immediately, never to be seen again.