• by Wendy Davis , Staff Writer @wendyndavis, June 15, 2023

In the last two decades, the entertainment industry has sued YouTube, MySpace, the former Veoh and other platforms for supposedly infringing copyright by failing to prevent users from posting professional music and video clips.

This week, entertainers went after yet another social media platform -- Twitter.

“Twitter consistently and knowingly hosts and streams infringing copies of musical compositions,” 17 music publishers including BMG Rights Management, Sony Music Publishing, Universal Music Publishing Group and Warner Chappell allege in a complaint filed Wednesday in Nashville federal court.

“While numerous Twitter competitors recognize the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement,” the companies add.

The music companies -- all members of the National Music Publishers' Association -- say Twitter fails to promptly respond to requests to remove copyrighted music, and doesn't disable accounts of supposed repeat infringers.

“Twitter is fully aware of the infringing activity at issue in this litigation, and it has not obtained any licenses or other agreements necessary for publishers’ musical compositions to be lawfully used on its platform,” the music companies write.

They identify 1,700 specific pieces of music that allegedly were wrongly hosted on the site, and are seeking up to $150,000 per work, totaling more than $250 million.

Whether they will succeed is yet to be determined.

In general, the Digital Millennium Copyright Act immunizes platforms like Twitter from liability for users' infringement, if the platforms remove the material at the owners' request.

That immunity has some exceptions, including one that applies when companies lack policies for handling repeat infringers, and one when companies have actual knowledge of infringement on their sites.

The music companies claim Twitter failed to remove copyrighted material upon request, but the complaint doesn't offer specific details -- such as when the companies allegedly notified Twitter about a particular infringing work, and what Twitter did in response.

Instead, the publishers say they expect to obtain more information as the case progresses.

“The precise extent of Twitter’s refusals to takedown specific infringing material of which it was aware will be the subject of discovery and analysis, including through a review of Twitter’s records,” the complaint states.

But Santa Clara University law professor Eric Goldman, who has written extensively about online copyright issues, says the complaint is in jeopardy without those details. He adds that Twitter can now argue that the complaint should be dismissed because it's not fleshed out enough for the company to understand what it allegedly failed to do.

“You can't have abstract discussions in copyright cases,” Goldman says.

The publishers also accuse Twitter of knowing that its platform hosts infringing material. But judges have ruled in other lawsuits that web companies maintain their immunity unless they have “specific knowledge” that a particular clip is infringing. In other words, general knowledge about infringement on the platform isn't enough to deprive companies of immunity.

For instance, the 9th Circuit Court of Appeals sided with Veoh in a copyright infringement lawsuit brought by Universal Music Group over clips uploaded by users.

In that case, the court rejected Universal's argument that Veoh wasn't protected by the Digital Millennium Copyright Act because the company knew its site hosted some infringing material. (While Veoh won the legal argument, the company declared bankruptcy -- and was absorbed by another business -- before the appellate court issued its decision.)

Viacom's copyright infringement lawsuit against Google's YouTube also resulted in ruling that Google couldn't be held liable based solely on "general knowledge" that its users were infringing copyright. That matter ultimately ended in a settlement.