Convincing large websites like Facebook and Google to nuke copyrighted content off their servers is pretty easy these days. Because of the "safe harbor" protections in the Digital Millennium Copyright Act (DMCA), websites are protected from liability for the actions of their users if they comply with requests from copyright owners to delete improperly distributed works. In practice, this means that copyright owners can get the action they want within a day or two. Even websites that are accused of infringing copyright by design—like Megaupload—have made sure to comply with the DMCA to gain that safe harbor.

But Twitter is being accused of ignoring a series of DMCA takedown requests lodged by an artist named Christopher Boffoli, who sued Twitter yesterday alleging copyright infringement. Boffoli is a full-time artist from Seattle who created the popular "Disparity Series," consisting of photographs featuring miniature figures in funny poses on various types of food. Since his photographs went viral last year, he has spent quite a bit of his time working the DMCA circuit, sending takedown requests to individuals, and sites like Facebook, Pinterest, and Google. Even some of his draft images were stolen off a server and distributed without his consent.

In most cases, infringing uses of his artwork are taken down from major websites within 24 hours. "Pinterest, Facebook, Google, those companies make it very easy to send a DMCA takedown and they respond very quickly," Boffoli told Ars. He has also contacted individuals and websites in countries like Turkey, Russia, and China. While some angry responses are inevitable, most people do comply with his takedown requests, he said.

But Boffoli said that Twitter—which hosts many of his photographs because of uploads from its users—hasn't been quite so accommodating. That's why Boffoli's lawsuit (PDF) accuses the company of inducing copyright infringement and failing to disable access to copyrighted material even after being notified about infringing uses. Boffoli has asked US District Court in Seattle for monetary damages and injunctions preventing Twitter from hosting Disparity Series photographs.

"I'm genuinely humbled and grateful that people are enthusiastic about my work and want to share it," Boffoli told Ars. "If somebody puts a couple of my pictures on a Tumblr page, thats totally fine." But he said that Twitter hosts a large volume of his work in violation of his copyright, and under Twitter's terms of service the company claims a "worldwide, non-exclusive, royalty-free license" to reproduce and distribute that content as it pleases.

"At the end of the day, DMCA wasn't designed to help companies like Twitter," Boffoli said. "It was designed to protect artists like me. It gives them a really easy out, to not have to be responsible for the activity of their users. And all I want is for them to respond to my polite requests to remove my intellectual property from their site."

Boffoli's lawsuit centers on four requests made to Twitter's registered DMCA agent between July 12 and August 16, covering dozens of tweets. These tweets aren't just links to other sites where his work is hosted; many of them, such as these, contain images hosted on twitter.com. While Boffoli is mentioned by name in some tweets, they either contain no links to his official site, or they link to sites that host copies of his images despite not being affiliated with him.

Some have been removed, but Boffoli said that's only because he has also contacted the Twitter users directly; some of them responded favorably. In most cases, it's not clear if users have any malicious intent or intend to make money off Boffoli's work. But his work does have financial value, he says, which is diluted by people distributing it for free in violation of copyright.

Playing defense

Twitter has strong defenses available to it. The company would only tell us, "We don't comment on pending litigation," but we spoke with intellectual property attorney Evan Brown, who said Boffoli will have a hard time proving willful infringement. (Brown is not involved in this case, but he has reviewed the lawsuit.)

One thing casual observers often misunderstand about the DMCA, Brown notes, is that while taking down content in response to takedown notices helps provide a safe harbor, failing to do so doesn't automatically make the site a copyright violator. Taking down content might simply prevent a lawsuit that the site would have won.

"If you're a service provider and fail to abide by the notice, that doesn't mean you're automatically responsible," Brown said. "Twitter has not lost the case because it didn't respond to the DMCA notice. The copyright plaintiff still has to prove that the service provider engaged in some form of infringement."

In the four cases cited in the lawsuit, Twitter sent what appear to be automated responses to Boffoli, but no further follow-ups. Twitter might have chosen not to follow up on the complaints for three reasons, Brown said. One is that the company is simply busy, though this seems unlikely. The DMCA doesn't specify a time limit, but requests are usually handled in days, not weeks or months. Twitter has complied with thousands of other DMCA requests in a timely manner, the ChillingEffects.org takedown database shows.

A second possibility in cases like this is that Twitter ignored the request because it wasn't filled out properly. That too seems unlikely. Brown reviewed one of Boffoli's takedown requests and said it checked out just fine, including the relevant information like proof of copyright and links to the infringing materials.

That leaves option three: Twitter might believe that the use of the photograph is not infringement, and is willing to fight the case in court. Brown notes that companies like Google and Facebook typically just comply with any properly filled out request to avoid litigation, but companies are certainly free to take stands on principle. "We know that Twitter's position tends to be skewed toward the free flow of information (setting aside the Olympics/NBC kerfuffle), so for policy reasons it may not want to disable access to content when it truly doesn't have to," Brown said.

But this also seems suspect. Some of the recent DMCA takedown requests Twitter has approved show the site is willing to delete tweets that merely link to infringing content. If Twitter has decided to fight this one, however, it could have a good case.

"If I were Twitter, I would not necessarily be all that concerned about Boffoli's claims, based on the facts as they appear in the complaint," Brown said. "It doesn't look like Twitter has materially contributed to the alleged infringement. Courts have held that just providing a website is not enough to lend material support in another's infringement. And I don't see how Twitter is obtaining any direct financial benefit from the alleged infringement. Moreover, I doubt Boffoli will be able to point to any statements on Twitter's part encouraging its users to infringe copyright. If he can't show any of these things, his secondary liability claims would appear to be dead in the water. But the lawsuit is just beginning—maybe he has some great facts that will come out later. I'm skeptical, though."

Boffoli has had occasional success in petitioning Twitter to take down his photographs. His requests began well before the July/August timeframe cited in the new lawsuit. In some cases, Twitter complied. In others, he said that Twitter kicked the requests back to him, claiming that he hadn't provided the right links.

Boffoli's attorney, Keith Scully, remains confident in his case. He said that if Twitter claims that the content flagged in the lawsuit does not infringe copyright, then "they're not following the DMCA. They can't decide what's copyright infringement and what isn't. If it's an unlicensed use of someone else's registered image, that's copyright infringement."

Boffoli's photos have been shared widely on the Web because of their humorous, approachable nature. "He gets a ton of notoriety but he doesn't make a lot of money off it yet," Scully said. "He does all his own copyright policing because he can't afford to hire a legion of lawyers and staff to take care of it for him."

"I'm just a working artist, trying to support my studio and myself," Boffoli said. Numerous websites do contact him to ask permission to distribute his work, "which I really appreciate," he noted. "It gives me a chance to provide the work in context, and even to provide images that aren't out there yet."

But on Twitter, he's disturbed by the sheer amount of his work that has been distributed without a license, and by the fact that Twitter claims broad sub-licensing rights over any content uploaded to its servers.

Lawsuits have a way of dragging on for years, but Scully thinks this one will be decided quickly, one way or another.

"There's not a lot of contested facts here, so it is probably something that would be resolved fairly early with summary judgments," he said. "I can't imagine why or how we would ever end up in front of a jury two years from now."