Twitter announced on November 2nd that it was revising its takedown procedures under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c).
Twitter’s new Copyright and DMCA Policy indicates that Twitter will no longer simply delete a tweet that is the target of a DMCA takedown notice. The deleted tweet or image will now be replaced by the following statement:
“This Tweet from @Username has been withheld [or, This image has been removed] in response to a report from the copyright holder.”
This change brings Twitter more in line with the practices of certain other online service providers. For example, upon receipt of a DMCA notification regarding a YouTube video, Google replaces the video with the message “This video is no longer available due to a copyright claim by [copyright holder].” Not all social media sites conform to this practice, however. Facebook, for example, will simply remove infringing content or suspend an infringing Facebook account without further public explanation or comment.
Twitter’s new policy also states that it continues to forward all DMCA notifications and counter-notices to ChillingEffects.org, which, among other things, logs and publishes cease-and-desist letters to “support lawful online activity against the chill of unwarranted legal threats.”
The reason for the revamped procedures, explains Twitter, is to bring transparency to the DMCA takedown process and, by implication, increase accountability by copyright owners and Twitter users.
Of course, IP rights holders and content posters should ensure there is a robust legal and factual basis in each case where a DMCA notification or counter-notice is contemplated.
The new policy might, in fact, bring more visibility to a DMCA notice, giving copyright holders one additional reason to pause before filing the notice. For instance, in addition to the existence of infringement, a copyright holder may want to consider the content poster’s identity, whether there are only a few followers to the content poster’s social media account, whether the copyright holder is cast in a bad light, and the sensitivity or confidentiality of the content distributed.
When, after taking into account these considerations, a copyright holder can live with an infringing post, it may opt to forego filing a DMCA notification with the goal of maintaining positive public relations with Twitter users – including the actual poster, who may be a customer or referral source – and the public in general.