Twitter’s longstanding refusal to secure music licensing rights came to a head with a lawsuit accusing the company of massive copyright infringement.
The three major music conglomerates – Universal, Sony and Warner – joined by a host of other publishers, sued Twitter for at least $250 million on Wednesday over the alleged infringement of about 1,700 works for which it received hundreds thousands of takedown notices. They allege that the company “constantly and knowingly hosts and disseminates copies of infringing musical compositions” to “fuel its business.” Twitter has rebuffed calls for it to obtain the proper licenses, according to the suit.
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Twitter is the only major social media platform without music licensing agreements, which allows these sites to legally host videos and other content featuring publishers’ music. Facebook, Instagram, TikTok, YouTube and Snapchat all have deals that compensate creators of musical compositions for the use of their work.
The lawsuit filed in federal court in Tennessee accuses Twitter of intentionally fostering a user base that posts videos overlaid with copyrighted music to “retain account holders and viewers” and “grow the number of engaging tweets” on the platform. “Twitter then monetizes these tweets and users through advertising, subscriptions, and data licensing, all of which serve to increase Twitter’s valuation and revenue,” the filing states.
The complaint points to a tweet from a known repeat offender who has been the subject of at least nine Twitter infringement notices. The publishers say Twitter took advantage of the infringement by posting a “promoted” tweet directly below the post and recommending a paying “promoted” account directly to its right.
In marketing and securities filings, Twitter represented that video drives high levels of engagement and that the majority of its users watch video content.
“The availability of videos with music, including copies of publishers’ musical compositions, furthers Twitter’s financial interests both because it boosts user engagement, and therefore ad revenue, and because Twitter does not pay a fee to license musical compositions from publishers and other music rights holders,” writes publishers’ attorney Steven Riley in the lawsuit. “Indeed, providing free, unlicensed music gives the Twitter platform an unfair advantage over competing platforms.”
In December 2021, the National Music Publishers’ Association, acting on behalf of publishers, began sending official infringement notices to Twitter weekly, according to the complaint. The company has been made aware of over 300,000 fake tweets. Despite this, Twitter “often waited weeks, a month, or even longer” before deleting the posts “if it works at all,” the lawsuit says.
The editors point out that Twitter has not implemented a policy to weed out repeat offenders. In its policy, the company addresses issues regarding copyright complaints, including what happens to accounts that receive one or more copyright complaints, but fails to warn users that they can be terminated for recidivism despite having had one before 2019.
“Users who repeatedly infringe copyright do not face a realistic prospect of permanently losing access to their accounts on the Twitter platform,” the suit states. “Rather than terminating access to specific users brought to its attention as infringers, which would have stopped or limited their infringement and deterred others from infringing, Twitter leveraged its platform to be a haven for counterfeiting activities.”
Under the Digital Millennium Copyright Act, Twitter can limit its liability for infringement by its users, but only if it has taken reasonable steps to provide for the termination of accounts held by repeat infringers. The production companies have sued Verizon Wireless, AT&T and Comcast for allegedly facilitating mass piracy of their movies, arguing that internet service providers are not protected by the DMCA, which provides for notice and takedown of content that infringes copyrights, because they turned a blind eye to customers who illegally distribute and download pirated movies.
Anticipating a fair use defense from Twitter, the publishers also say the purpose of using their music on Twitter is to maximize views and make posts more persuasive, “not to engage in political speech or newsworthy, comments or criticism”. They quote a tweet with Rihanna’s official ‘Umbrella’ music video which states, “15 years ago Rihanna released ‘Umbrella.’ The post got 221,000 views and almost 15,000 likes.
Last year, Elon Musk tweeted that “current copyright law in general goes far beyond protecting the original creator,” according to the complaint.
The lawsuit, which seeks $150,000 for each infringed work, claims direct copyright infringement, contributory infringement and vicarious infringement. The 17 publishers who sued are represented by the National Music Publishers Association. They include Anthem Entertainment, Big Machine Music, BMG Rights Management, Kobalt Music Publishing America, and Spirit Music Group, among others.
In a statement, NMPA President David Israelite said Twitter “knows full well that music is leaked, started and streamed by billions of people every day on its platform.” He added that the company could not “hide behind the DMCA”.
Twitter was exploring licensing music rights from three major labels before Musk took over the company, The New York Times reported in March.
In a 2021 letter to then-CEO Jack Dorsey, more than 20 members of Congress called on the company to adopt “robust content protection technology” to reduce the publication of infringing content. In January, Twitter faced a similar lawsuit from celebrity photo agency Backgrid for allegedly infringing thousands of its photographs by users of the platform.
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