Under U.S. law, online service providers must respond to takedown notices and implement a meaningful policy to terminate the accounts of repeat infringers.
Many of the large social media platforms stick to these rules, but according to a lawsuit filed by several prominent music companies earlier this year, X is not among them.
‘Breeding Mass Copyright Infringement’
In a complaint filed at a federal court in Nashville, Universal Music, Sony Music, EMI and others accused X Corp of “breeding” mass copyright infringement. The company allegedly fails to respond adequately to takedown notices and lacks a proper termination policy.
“Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law,” the complaint alleged.
“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 that harms music creators.”
The music companies say that while many online platforms have agreed to licensing deals, X has shown little interest in compensating musicians. This hasn’t changed since Elon Musk took over.
Instead, Musk fanned the flames by describing the Digital Millennium Copyright Act (DMCA) as a “plague on humanity.”
X Asks Court to Dismiss Lawsuit
A few hours ago X responded to these copyright infringement allegations in court. According to the company’s lawyers, the music labels’ complaint fails to state any proper claims and should therefore be dismissed.
The complaint argues that X is liable for direct infringement, and is contributorily and vicariously liable for the copyright-infringing activities of its users. However, X’s attorneys, contest all three claims.
For example, liability for direct copyright infringement requires non-automated and intentional acts by the defendant, while many of X’s alleged wrongdoing related to passive and automated algorithms.
“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 company writes.
X’s alleged failure to properly respond to DMCA takedown notices could be seen as more active, but the defense notes that the music labels fail to show that X employees deliberately caused these infringements.
“[A]llegations that X delayed action or failed to take down specific infringing material are insufficient to plead direct infringement because there is no contention that X knowingly and deliberately caused the initial infringing act.”
The motion to dismiss goes on to refute the contributory copyright infringement claim. Musk’s lawyers stress that X has substantial non–infringing uses and that plaintiffs, therefore, have to show that the service took active and intentional steps to encourage infringement.
The complaint fails to make these claims, the defense notes. On the contrary, X has implemented anti-infringement policies and practices, including a DMCA policy. While the music companies allege that X could do more, that’s not sufficient to invoke liability.
“Although the Complaint paints X’s anti-infringement efforts as inadequate, it does not allege that these efforts were meant to encourage infringement. Rather, Plaintiffs’ position is that X can do more than it already does to prevent copyright infringement.”
Similarly, the suggestion that X didn’t license music, as other services have done, doesn’t mean that its actions were infringing.
“Whether X sought music licenses for users or elected not to do so has no bearing on this inquiry; it is not evidence of an intent to encourage infringement,” X’s attorneys write
The final liability claim also lacks substance, according to X. To establish vicarious liability, the music companies must show that X has a direct financial interest in the infringement, and the right and ability to supervise the infringing conduct.
“Here, the Complaint fails to allege that X received a direct financial benefit from the alleged infringement of Plaintiffs’ works. Nor could it.
“X is a service that offers a wide range of legitimate uses to subscribers; for example, the Plaintiffs in this case maintain their own X accounts that they use for promotional purposes.”
The music companies showed in their complaint that advertisements were running next to infringing content. However, according to X, this doesn’t mean that these advertisements were placed intentionally next to pirated content.
All in all, it’s clear that both sides have an entirely different view of the case. The music companies have yet to respond to X’s motion and, with many millions of dollars in damages at stake, they’re likely to counter with full force.
A copy of Twitter/X’s motion to dismiss the music company’s complaint is available here (pdf)