X / Twitter tells court music publishers’ lawsuit is B.S. [Mike Masnick]

Mike Masnick of Techdirt explores what he sees as the absurdity of a lawsuit by the major labels against X / Twitter for ongoing music piracy.

Op-ed by Mike Masnick from Techdirt

Back in June, we wrote about a ridiculously weak lawsuit from the big music publishers against exTwitter, claiming that the platform, mostly known for text, and which barely has any reasonable system for posting or listening to music, was a music piracy haven.

As we noted, the publishers’ lawsuit seemed misguided in multiple ways, beyond just the lack of facilities on exTwitter for music, but also because the entire lawsuit seems to ignore the nature of the DMCA or any number of previous cases that says that online platforms need to have specific, actual knowledge of infringing works, rather than generalized knowledge that “infringement is happening on my platform.”

exTwitter has now hit back in court (first reported by Torrentfreak), and is asking for the judge to toss out the lawsuit. My initial fear with this lawsuit is that exTwitter would blow it by hiring bad lawyers who don’t understand the nuances here, but at least that doesn’t seem to be the case so far. Elon appears to have turned it over to his favorite lawyer, Alex Spiro, and his colleagues at Quinn Emanuel. While I wouldn’t trust Spiro for any of this, QE actually does have some very strong lawyers on copyright who have won some big cases, so there’s some serious lawyering going on.

The preliminary statement lays out the details of what a joke this case is:

Plaintiffs fail to adequately allege direct infringement because the Complaint does not contend that X acted with the requisite “volitional” conduct. The law requires that direct infringement arise from active, knowing, non-automated conduct by a defendant—not from the passive, automated operations of a website. The Complaint contains no allegations of active, intentional conduct by X, or any X employee, related to the allegedly infringing user posts—an omission that is fatal to the claim.

The contributory infringement claim is similarly defective. The United States Supreme Court has held that where a company offers a product or service that has substantial non-infringing uses—as X’s service indisputably does—the copyright plaintiff must allege that the defendant took active steps with the intent of encouraging infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 937 (2005) (“Grokster”). In this case, Plaintiffs do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works. To the contrary, X’s anti-infringement policies and practices, including its DMCA policy, belie any reasonable assumption that X has induced its users to infringe any copyrights. Even reading the Complaint in the light most favorable to Plaintiffs, no liability can be established on the facts as pleaded. As this Court appropriately recognized in a case with similar facts, this pleading defect requires dismissal of the contributory liability claim. See Eight Mile Style, LLC v. Spotify USA Inc., 535 F. Supp. 3d 738, 746 (M.D. Tenn. 2021).

Finally, Plaintiffs’ claim for vicarious liability fails as a matter of law because Plaintiffs do not allege that the ability to post infringing content to the X platform (in violation of the Terms of Service) is a draw to users sufficient to confer an “obvious and direct” financial benefit to X, or that X had the practical ability to supervise the alleged infringement. As such, the vicarious liability claim is also insufficiently pleaded and should be dismissed.

There’s a ridiculous amount of caselaw on exTwitter’s side on this one.

I still worry about how Elon, as a wild card, will tweet something ridiculous like “hey everyone, let’s start posting infringing songs here for the lulz” or whatever. But, barring that, exTwitter has a strong case here, and the publishers look even greedier than they normally do in filing this case.

Twitter is not a music platform, and even if Musk is gradually hoping to turn the platform into one, that should be dealt with when those plans become clear, rather than the flimsy theories filed in this lawsuit, which would get laughed out of any law school copyright law discussion.