June 16, 2023In the News

DeMarte quoted in Bloomberg Law article, "Twitter Faces Music Industry Reckoning in Major Copyright Suit"

Bloomberg Law

The most surprising thing about the music industry suing Twitter over copyright infringement is that it didn’t happen sooner, according to attorneys who say the case will test the social media giant’s ability to raise a decades-old liability shield.

X Corp., formerly Twitter Inc., profits from rampant infringement while failing to remedy the problem, a slew of music publishers said in a June 14 complaint in a Tennessee federal court. Collectively, the companies hold the rights to millions of songs from artists like Rihanna and Taylor Swift, to Mick Jagger and John Denver. Twitter allegedly “rebuffed” calls for it to obtain licenses, unlike other social platforms.

The suit will challenge Twitter’s ability to wield the safe harbor provided in the Digital Millennium Copyright Act. That law protects platforms from liability for user infringement, but only if they satisfy a number of requirements including honoring takedown requests and having a policy to terminate the accounts of repeat infringers.

The shield has been overcome to the tune of big awards, particularly in cases against internet service providers. The music industry in 2019 secured a $1 billion verdict against Cox Communications—an appeal in the US Court of Appeals in the Fourth Circuit is pending. The lead law firm in that case, Oppenheim & Zebrak LLP, also represents the music publishers against Twitter.

With the industry turning its attention to social media, big tech companies that own platforms like Facebook, TikTok, and YouTube have come around to paying for music to avoid liability.

Twitter an ‘Outlier’

The DMCA, enacted in 1998, was designed to let platforms grow without having to face liability when any of an unprecedented number of users infringed a copyright.

The law’s tradeoff was that ISPs and web platforms had to adhere to its takedown notice and counter-notice regime, among other requirements.

The suit was filed in the US District Court for the Middle District of Tennessee by Sony Music Publishing LLC, Universal Music Corp., Warner Chappell Music Corp., and a host of other publishers and labels that filled the entire first page of the complaint.

It said the publishers, through the National Music Publishers’ Association, had expanded substantial efforts to finding infringement on Twitter and notifying the company.

“Twitter is quite an outlier at this point in terms of how they deal with music,” IP attorney Luke DeMarte of Michael Best & Friedrich LLP said. “They say, ‘We’re not a music platform.’”

He said that may have been a somewhat better argument for past versions of the site, “but now they make it so easy to upload audio-video content, I don’t see how they can keep sticking to that story.”

To read the entire Bloomberg Law article, please click here.

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