Twitter and Starz have given us a new example of how copyright enforcement can easily go overboard.
At Starz's request, Twitter blocked an April 8 tweet by the news site TorrentFreak, which had posted a link to one of its news articles about piracy. News coverage about piracy is obviously not the same thing as piracy, and the article contained only still images from pirated TV shows and did not tell readers where pirated content could be downloaded. Despite that, Twitter blocked access to the tweet in response to the copyright takedown request by Starz, whose show American Gods was mentioned in the TorrentFreak article.
Here's what the tweet looked like before the takedown:
On April 11, hours after the tweet was blocked, TorrentFreak wrote an article about the takedown and quoted an Electronic Frontier Foundation (EFF) attorney as saying that the takedown was inappropriate because news coverage about piracy is not illegal. The EFF then posted a tweet that included a link to the new TorrentFreak article and a portion of the EFF quote from the article. Twitter then blocked that EFF tweet in response to another Starz request, even though the EFF tweet merely linked to the new TorrentFreak article about the takedown and criticized Twitter's decision to block the first tweet.
Here's a look at the EFF tweet:
"Get ready for a tale as good as anything you'd see on television," EFF Policy Analyst Katharine Trendacosta wrote yesterday. "Here's the sequence of events: the website TorrentFreak publishes an article about a leak of TV episodes, including shows from the network Starz. TorrentFreak tweets its article, Starz sends a copyright takedown notice. TorrentFreak writes about the takedown, including a comment from EFF. EFF tweets the article about the takedown and the original article. EFF's tweet... gets hit with a takedown."
The tweets were still inaccessible this morning and early afternoon but are now visible again here and here. When contacted by Ars, Twitter said it was restoring the tweets that it previously removed because of the Starz takedown notices. Starz apologized for the incorrect takedown notices, Variety reported today.
The TorrentFreak tweet was blocked for four days before being restored. The EFF tweet was blocked for about one day.
Starz deserves blame for sending bogus takedown notices. But Twitter could have avoided the mess by performing even a cursory review of Starz's requests, which offered no evidence of copyright infringement.
DMCA takedowns
Like other online platforms that rely on user-generated content, Twitter offers copyright owners a simple way to report content that infringes copyright. This type of process protects websites from legal action by providing a "safe harbor" under the Digital Millennium Copyright Act (DMCA).
Starz used a third-party agency called The Social Element to send DMCA takedown requests on its behalf. Starz's vendor sent the first takedown request to Twitter after TorrentFreak posted a tweet consisting only of the headline and link to its April 8 article, which was titled, "Pirated Promo Screeners of American Gods and Other TV-Shows Leak Online." The TorrentFreak article describes a recent increase in leaks of promotional copies of episodes, which are generally sent to reviewers and are supposed to be kept confidential, suggesting that "a serious security hole has been exploited."
"According to the takedown notice, Starz argues that the tweet is infringing because it links to an article where people can see 'of images of the unreleased episodes' and find more 'information about their illegal availability,'" TorrentFreak wrote on April 11, hours after the tweet was blocked by Twitter.
TorrentFreak continued:
For the record, our article only includes a single identifiable frame from a leaked American Gods episode, to show the screener watermarks, which are central to the story. That's just 0.001 percent of the episode in question, without audio, which is generally seen as fair use, especially in a news context.
As for the claim that the article includes information about the shows' "illegal availability," we only mention that they are being shared on pirate sites, without giving any names or links. That's no ground for a takedown request.
EFF Senior Staff Attorney Kit Walsh agreed, saying in the article that "Starz has no right to silence TorrentFreak's news article or block links to it. The article reports that there are people on the Internet infringing copyright, but that is a far cry from being an infringement itself."
Walsh further argued that "The screenshots are important parts of the reporting that validate the facts being reported. Starz should withdraw its takedown and refrain from harassing journalists in the future."
EFF tweet blocked
When the EFF used its official Twitter account to post a link to the new TorrentFreak article and included a snippet from Walsh's quote, its tweet was also suppressed.
"A few days later, we also received a takedown and our tweet was blocked," Trendacosta wrote. "At this point, you may have noticed just how far removed we are from anything that remotely resembles copyright infringement."
Twitter acted on Starz's DMCA notice even though it didn't present a convincing case that the EFF's tweet violated Starz's copyright.
"In the field labeled 'links to original work,' Starz wrote 'n/a,'" Trendacosta wrote. "To reiterate: in the field about where the original work being infringed on can be located, the answer is 'not applicable.' Under 'Description of infringement,' it says, 'Link to bootleg.' There's no bootleg link in any of the articles or tweets."
The EFF challenged Twitter directly. "The DMCA process allows us to send a counterclaim, explaining that the tweet is not infringement and directing Twitter to restore the tweet, barring a copyright infringement lawsuit being filed by Starz. We have done so," Trendacosta wrote yesterday. Twitter's decision to restore the tweets came after that challenge.
Twitter's copyright policy says it will respond to reports of copyright infringement about "tweets containing links to allegedly infringing materials." But the policy also notes that "not all unauthorized uses of copyrighted materials are infringements," and it advises copyright holders to consider whether a tweet is fair use before submitting a copyright complaint.
We contacted Starz this morning and haven't heard back yet. But Starz explained itself in its statement to Variety, saying that it hired a third-party vendor to conduct copyright enforcement after a recent security breach.
Starz told Variety:
The techniques and technologies employed in these efforts are not always perfect, and as such it appears that in this case, some posts were inadvertently caught up in the sweep that may fall outside the DMCA guidelines... That was never our intention and we apologize to those who were incorrectly targeted. We are in the process of reviewing all of the impacted posts as well as the scope and procedure for the previous takedowns and are working with our vendors to reinstate any such content that was inappropriately targeted for removal.
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