Plagiarism, Twitter, and the DMCA

It’s been a pretty crazy weekend for the Plagiarism is Bad account. One of the collaborators (not me) noticed a strange thing when he did one of our usual searches to find people stealing a tweet. Some of the tweets were replaced with a notice that said they were being “withheld in response to a report from the copyright holder.” He tweeted about that (with a screen shot) and his tweet went viral, first via retweets and quotes, and subsequently on all the new media news sites.

So what’s going on? I’ve covered a lot of this before so I won’t get into the details here, but basically, Twitter couldn’t care less about tweet theft. They give blue “verified” checkmarks to accounts like “Men’s Humor” that contain nothing but stolen content and links to clickbait sites. They ignore the fact that one guy has created hundreds of accounts and populated them with stolen content and more clickbait links. Twitter really doesn’t care about this at all. They have a form you can use to report accounts that chronically steal, and as far as anyone knows, they’ve never acted on any report filed using that form.

However, there’s this funny law in the USA (and similar laws in other countries) that says unless you provide a way for copyright holders to request that copyright-infringing content is taken down, you the service provider become the copyright thief. The penalties for infringing copyright are draconian, and so it’s really important that if you run a site like Twitter that you follow these so-called “safe harbor” rules. In the USA, this law is called the DMCA.

The rules go like this: a copyright holder makes a complaint and the service provider gives the infringer a chance to counter. If the infringer says it isn’t stealing, then the service provider is off the hook, and the two parties can go fight it out in court. If the infringer ignores the report, then the service provider has to take the content down. The service provider does not need to weigh in on whether they think it actually is infringing content. It’s certainly safest for them if they just assume all allegations are legitimate.

So what’s happened is that at least one writer has gone ahead and asserted that they own the copyright on a joke. And Twitter simply treated this like any other DMCA “take down request” and took the content down. There’s some question whether they actually notified the person who did the theft. Their policy is that they will, but at least one admitted thief said they got no notice.

So does that mean that Twitter thinks jokes are subject to copyright? No, it really doesn’t. Twitter’s DMCA request form has some language that implies they think poems and song lyrics are. But whether Twitter itself thinks anything is subject to copyright is basically irrelevant. They are going to take down anything that gets reported because that’s the safest way to not end up in legal trouble. Twitter is in no way alone in this regard. Pretty much every service provider has that same policy.

So although it seems that Twitter has suddenly started doing something new, maybe they really haven’t. Maybe what’s new is that authors are using the DMCA form to report theft instead of the abuse form. And whereas I’m pretty sure the abuse form goes to a “write only database,” they actually have to read the DMCA reports or they can lose their “safe harbor” status and be held liable by litigious bulldogs like the record companies.

Whether jokes are subject to copyright is not settled law. I covered this in detail before, but the short version is maybe they are, maybe they aren’t. Making a DMCA complaint about a joke is perfectly reasonable, given how grey this is. As long as you really are the author, there’s nothing “in bad faith” about reporting the theft, and you aren’t going to get in any trouble for doing it, even if some day the courts decide once and for all that joke tweets aren’t protected.

But the DMCA is absolutely the wrong tool for this job. What Twitter should do is read the abuse reports, see that the accounts being reported are crap, and shut them off. Why they don’t is anyone’s guess. But I’m quite certain that would be a lot cheaper to do than to handle all this in the DMCA reporting system. Perhaps all the publicity being generated this weekend is going to cause a big surge in the DMCA requests and that might cause Twitter to take a step back and realize they can do both themselves and the community a favor by simply shutting down any account that steals tweets.