January 4, 2016
Bank of America asserted copyright claims to stop a business journalist from referencing material written by a member of its staff. Based on the reported facts, this incident appears to illustrate the perils of expansive application of copyright law. The rights of intellectual property owners must always be balanced against the need for continuing public access. Preservation of this balance is essential to the overall public interest.
Jim Edwards is a business journalist. Recently he referenced, in a social media post on Twitter, a report apparently written by a member of the Bank of America staff. Edwards did not publish the report, nor did he quote from the report. Instead, he apparently merely referenced the report’s title and its general subject matter.
A claim of copyright infringement was reportedly communicated to Twitter on behalf of Bank of America. Based on the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA), Twitter informed Edwards of the claim and removed the challenged content.
Edwards contends that his reference to the Bank of America report is permissible as a form of fair use. His position seems to be entirely reasonable. To the extent that any copyright protected material is involved in this incident, the facts seem to indicate clearly that the use of that material should be characterized as fair use.
This incident illustrates that online content intermediaries, such as social media platforms, now routinely attempt to avoid playing an active role in copyright dispute resolution. The DMCA does not require that the intermediaries ultimately remove contested content. Instead, it requires that those intermediaries provide and operate a process through which copyright claims can be efficiently initiated and resolved.
The DMCA permits online intermediaries to review all claims and to make decisions regarding appropriate remedies. In some instances, removal of the content in question is the most appropriate action. In other situations, however, claims raised under the DMCA do not justify content removal.
Twitter’s response in this case reflects an increasingly popular approach by online service providers with regard to copyright claims. Instead of evaluating the specific facts associated with each claim on a case by case basis, many service providers now routinely remove challenged content upon receipt of a copyright claim without careful evaluation of the details of the case.
One factor encouraging service providers to avoid evaluating copyright claims is risk of liability. If a service provider evaluates a copyright claim and chooses, based on the specific facts, to keep the content accessible, the service provider runs the risk of legal liability. Risk of liability is minimized if the service provider automatically removes content upon receipt of a DMCA challenge. However, this approach can result in multiple instances in which material which copyright law would permit the public to access (e.g., fair use materials) is made inaccessible as a result of a DMCA claim.
Copyright law provides a variety of mechanisms through which public access to proprietary material is ensured. Courts and other authorities should act to ensure that the terms of the DMCA do not evolve into barriers to public access to content. Online content intermediaries should be encouraged to play a more active role facilitating effective balancing of the interests of content owners and content users.