Update, 4/15/2019: EFF's tweet has been restored.
Get ready for a tale as good as anything you’d see on television. 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.
TorrentFreak’s original article about leaked episodes of television does contain a few screenshots of some of the leaked episodes—enough to establish the veracity of the story. It does not contain links to download the episodes, a fact to keep in mind as this story goes on.
TorrentFreak then tweeted a link to its article, which did contain a thumbnail image, but not one that matches any of the screenshots in the article. An agency acting on behalf of Starz then used the Digital Millennium Copyright Act (DMCA) to have Twitter remove the tweet, alleging copyright infringement. The complaint TorrentFreak received says the article has “images of unreleased episodes” of the show American Gods. It also maintains that TorrentFreak supplies “information about their illegal availability.”
Here’s the thing: TorrentFreak reporting about an illegal event is not illegal. Reporting about copyright infringement is not infringement. The few thumbnails—including a single image from American Gods—act as proof of the story being reported and certainly don’t replace watching entire episodes of television. (If you don’t believe me, go look at a single screenshot from a show and figure out if it scratches the same itch as watching a whole hour of TV.) The screenshot also illustrated the watermarks in the leaked episode, which suggest that the leak came from a pre-release screener copy sent to TV critics, as the TorrentFreak article discusses.
Articles reporting on true events are textbook examples of fair use. Using the DMCA in this way is an attack on journalism and fair use. Which is what we would have said if asked.
Oh, wait. We were asked. TorrentFreak followed up its first article with one about the takedown it received. They reached out for comment, and, among other things, EFF Senior Staff Attorney Kit Walsh told TorrentFreak:
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. 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.
As is our wont, we tweeted out a link to TorrentFreak’s original article, with text nearly identical to Walsh’s statement to TorrentFreak. A few days later, we also received a takedown and our tweet was blocked. At this point, you may have noticed just how far removed we are from anything that remotely resembles copyright infringement.
The DMCA notice we received from Twitter was sent by Starz. In the field labeled “links to original work,” Starz wrote “n/a.” 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.
Sending a DMCA complaint requires a sworn statement that the person sending the complaint actually believes it to be copyright infringement. Look at this sequence of events again and try to imagine sending a takedown for our tweet honestly believing it to be infringement.
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.
DMCA claims can be intimidating, especially to people who don’t know the ins and outs of the process. Fortunately, EFF is an organization that definitely knows its rights and how to exercise them. And we’ll keep calling out abusive takedowns and helping people defend their rights to speak on the Internet.
