Can you infringe on a copyright in 140 characters?

November 9, 2012

Twitter censoredI wouldn’t have thought so, but evidently, Twitter thinks you can. That’s why on Saturday it announced a new policy with regard to Tweets that allegedly infringe on a copyright.

In the future, if Twitter receives a complaint about a Tweet that allegedly infringes on a copyright, it will remove the Tweet and replace it with a standard message indicating the Tweet has been removed “in response to a report from the copyright holder.”

A spokesman for Twitter said that the placeholder message will remain in place until it receives a valid counterclaim from the owner of the Twitter handle, if it ever does.

Evidently, Twitter used to just remove the allegedly infringing Tweet, so the placeholder text could actually be seen as a conciliatory gesture to the owner of the Twitter handle because it gives him or her the opportunity to make a rebuttal.

Now, as I said earlier, at first blush it would seem difficult to me to infringe on a copyright in 140 characters. Wouldn’t that be a “reasonable and limited use” of the copyrighted work — a fair use?

Maybe, but I might need to update my thinking.

When I think of “fair use,” I always think of something like a book critic quoting a passage from a novel in a book review. That’s fair use because:

  • It’s reasonably related to the aim of the critic’s work
  • Doesn’t use more of the work than necessary to achieve its objective
  • And, since the passage is a small fraction of the novel, doesn’t create substantial economic impairment for the copyright holder.

But on the Internet, things are different. Using novels and newspapers in your copyright-infringement hypotheticals just doesn’t work anymore.

What if the copyrighted work here were a Tweet in the first place, and your friend copy/pasted it instead of re-Tweeting it? I could see the argument for that being an infringement, I guess, although a lot of the elements of the example I gave in the last paragraph seem absent to me.

Besides links to infringing websites, to which the policy also applies, where I think this really comes into play is with fake Twitter handles. Twitter’s copyright policy applies to images such as “a profile photo, header photo, or background,” meaning you can go ahead and use a duck face selfie but can’t swipe a picture of Linday Lohan and use it as your picture. (Sidenote: Twitter, could you please adopt a policy banning Internet face? Kthxbai.)