Who: Twitter, Inc (“Twitter”)
Where: USA
When: July 2015
Law stated as at: 2 September 2015
What happened:
In the US, Twitter has responded to a Digital Millennium Copyright Act (“DMCA”) take down notice by removing tweets containing a joke on the basis of copyright infringement.
The alleged infringement
The tweet in question was originally posted by a freelance writer called Olga Lexell who tweeted the joke “saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side“. Ms Lexell’s tweet was then reposted by a number of Twitter users without crediting the source of the joke as her. Many of the accounts reposting the tweet were spam accounts or bots.
Action taken
On seeing the reposting of her tweet, Ms Lexell filed a request with Twitter for the posts to be removed. She did this via Twitter’s DMCA take down policy. Ms Lexell is reported to have explained to Twitter that she makes her living from writing jokes and uses her tweets to test out jokes in other writing and that as such the jokes are her intellectual property. She explained that the users in question did not have her permission to repost them without giving her credit.
Twitter proceeded to remove the offending tweets and they were replaced with a message stating “this tweet has been withheld in response to a report from the copyright holder“.
Twitter’s DMCA take-down policy
Twitter has a take-down policy to handle claims for copyright infringement. Under the DMCA Twitter is provided “safe harbour” from copyright claims so long as it does not try to protect infringing material. Typically claims will involve embedded material in tweets such as videos or images, so this case was somewhat unusual in that it concerned the content of the tweet itself. Anyone can submit a claim through Twitter’s Web Form and Twitter will then review the claim and decide whether it appears to be valid. If it decides to take action in relation to the claim, Twitter can then remove the offending tweet. The company’s policy is to then give the offending user 10 days to file a counter notice if the user objects.
Why this matters:
It is interesting that this is one of the first cases where Twitter has taken down tweets due to infringement of copyright in the content of the tweet itself rather than an image or video embedded within it. Whilst the action here was based on US copyright law, it is likely that similar action could be taken under UK and EU copyright laws. Indeed, the CJEU case of Infopaq (Case C-5/08) established that an 11 word newspaper article may be protected by copyright provided that it is original (i.e. it is the author’s own intellectual creation). This could feasibly cause problems for any brands copying a tweet which was not originally theirs as part of their social marketing campaigns
