I sympathize with neighborhood listserver moderators. I know what they deal with, having moderated a handful of East Raleigh neighborhood lists for several years. It’s not easy keeping certain topics from exposing strong opinions and blowing up into a major snit. This is especially true with the listserver of a nearby neighborhood, Historic Oakwood, full of very passionate citizens.

Recently it came to light that someone was reposting snippets from this neighborhood’s listserver onto a Twitter called OakwoodListserv. The listserver moderator complained that the account violated the listserver’s terms of use and so the account should be removed. These terms, adopted in October 2013, prohibit reposting list content in other forums without the author’s permission.

These rules are prudent and understandable. Listserver moderators have the right to regulate what goes on on their lists and to expect list members to abide by certain standards. I get that because I’ve done it myself for years. I’ve regretfully had to kick certain members off my lists because they couldn’t behave.

It’s what I didn’t know until today that gives me pause. On March 4th, someone representing the neighborhood filed a DMCA complaint against the mocking Twitter account, claiming copyright infringement. Twitter subsequently deleted the account and there would be no trace of it today save for the DMCA abuse-tracking website Chilling Effects. Here’s the complaint as posted by Chilling Effects:





March 03, 2014 Sender Information:

Society for the Preservation of Historic Oakwood (SPHO)

Sent by: [Private]

SPHO Board Member & Webmaster

Raleigh, NC, 27604, USA Recipient Information:

[Private]

Twitter

San Francisco, CA, 94107, USA Sent via: online form

Re: Infringement Notification via Twitter Complaint DMCA Takedown Notice: Reporter:

Copyright Owner: Society for the Preservation of Historic Oakwood (SPHO)

Name: [redacted]

Company: Society for the Preservation of Historic Oakwood (SPHO)

Job title: SPHO Board Member & Webmaster City: Raleigh

State/Province: NC

Country: USA

——- Reported Twitter account: @OakwoodListserv Where is the image?: It’s this user’s avatar (profile picture) Reported material on Twitter: Avatar Description of original work: SPHO’s Oakwood quatrefoil logo Copyright holder?: n/a Description of infringement: This twitter account is masquerading as an official Twitter account of the SPHO. The SPHO does not have a Twitter account. As can be seen in the image being used it is clearly marked with a TM. This twitter account was not created by nor on behalf of the SPHO and is a violation of trademark and copyright law. WE REQUEST THAT THIS ACCOUNT BE SHUT DOWN and the email address of the creater of this account be provided to the Society for the Preservation of Historic Oakwood. (http://www.historicoakwood.org/) — Reported Twitter account: @OakwoodListserv Description of original work: tweet – “Two men were in my neighbor’s back yard on Tuesday night. They ran out on to East St. and shouted “What are you looking at?”

https://twitter.com/OakwoodListserv/status/439444921855258625 Description of infringement: This is a repost from a private Yahoo group (https://groups.yahoo.com/neo/groups/historicoakwood/info) and violates the rules and guidelines of the that Yahoo group which was created and is moderated by the SPHO. Users specifically do not have the right to repost any comment or post from the Yahoo Group without the express permission of the original author. — Reported Twitter account: @OakwoodListserv Description of original work: Yahoo Group Posting

https://groups.yahoo.com/neo/groups/historicoakwood/conversations/messages/20431 Description of infringement: This is a repost from a private Yahoo group (https://groups.yahoo.com/neo/groups/historicoakwood/info) and violates the rules and guidelines of the that Yahoo group which was created and is moderated by the SPHO. Users specifically do not have the right to repost any comment or post from the Yahoo Group without the express permission of the original author. — Reported Twitter account: @OakwoodListserv Description of original work: Yahoo Group Posting

https://groups.yahoo.com/neo/groups/historicoakwood/conversations/messages/20451 Description of infringement: This is a repost from a private Yahoo group (https://groups.yahoo.com/neo/groups/historicoakwood/info) and violates the rules and guidelines of the that Yahoo group which was created and is moderated by the SPHO. Users specifically do not have the right to repost any comment or post from the Yahoo Group without the express permission of the original author. ——- 512(f) Acknowledgment: I understand that under 17 U.S.C. § 512(f), I may be liable for any damages, including costs and attorneys’ fees, if I knowingly materially misrepresent that reported material or activity is infringing. Good Faith Belief: I have good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. Authority to Act: The information in this notification is accurate, and I state under penalty of perjury that I am authorized to act on behalf of the copyright owner. Signature: [redacted]

Let me preface this by saying I think Historic Oakwood is the premier neighborhood in the city and I maintain close relations with it and many Oakwood residents. Still, the free speech advocate in me can’t help but point out the multiple problems with this complaint.

The first part of the complaint claims the logo used for the account “violates trademark and copyright law:”

Description of infringement: This twitter account is masquerading as an official Twitter account of the SPHO. The SPHO does not have a Twitter account. As can be seen in the image being used it is clearly marked with a TM. This twitter account was not created by nor on behalf of the SPHO and is a violation of trademark and copyright law.

First off, Twitter does not care one whit whether an account is masquerading as an account of someone else. Nor does copyright law. That alone is no basis for removing an account. There are copyright protections for parody and satire and this account clearly falls into that category.

Secondly, trademarks and copyrights are two very different things. Anything you create automatically has copyright protection, without you even having to do anything to secure it, but it doesn’t work the same way with trademarks. Just slapping a “TM” on a logo doesn’t grant it trademark protection. Trademarks need to be thoroughly researched, filed, and then actively protected. I searched the USPTO’s trademark database for a good twenty minutes and could not find this logo nor any other trademarks held by Historic Oakwood. Just saying something is trademarked doesn’t make it so.

Now, the other part of this does hold true: the image of the logo is indeed copyrighted. In this case, Twitter should have simply notified the offending account to stop using the image. If Twitter shut down all the accounts that have ever used someone else’s images they’d have no subscribers left.

WE REQUEST THAT THIS ACCOUNT BE SHUT DOWN and the email address of the creater of this account be provided to the Society for the Preservation of Historic Oakwood. (http://www.historicoakwood.org/)

Wow, this is really disturbing. Tracking down the offender? Are you kidding?

Now let’s take a look at the allegedly-infringing tweets. It’s difficult to make an argument that a medium limited to 140 characters like Twitter is ripe for copyright infringement. Copyright law makes allowances for brief quotes or summaries of copyrighted works. None of the tweets mentioned in the takedown notice do anything but quote messages from the listserver, so they would appear to be allowed under Fair Use.

Take a look at the first allegedly-violating tweet:

“Two men were in my neighbor’s back yard on Tuesday night. They ran out on to East St. and shouted “What are you looking at?” https://twitter.com/OakwoodListserv/status/439444921855258625

This was two sentences of a six-sentence message. Copyright infringement? Hardly.

The second and third parts of the complaint appear to be simply links to messages in the Oakwood List archives on Yahoo Groups:

Description of original work: Yahoo Group Posting

https://groups.yahoo.com/neo/groups/historicoakwood/conversations/messages/20431

Description of original work: Yahoo Group Posting

https://groups.yahoo.com/neo/groups/historicoakwood/conversations/messages/20451

I don’t know what the original content of the tweets were but the first post mentioned was an 11-line, multiple-sentence post that couldn’t possibly have been conveyed in a tweet in any way that constituted copyright infringement. The second post was a 175-character email, not counting the poster’s name at the bottom, and might have been edited to fit into a tweet but without the actual tweet it’s not easy to tell.

If the complaint literally shows the tweets’ content then there was no DMCA violation. Posting a URL is not copyright infringement! You can’t even make an argument that the URL is exposing private conversations as the page the link refers to isn’t even visible to anyone who isn’t already subscribed to the list. In fact, not even the Twitter staff responding to this request could see the content behind these links since they aren’t list members. How could they possibly know what was infringed?

I don’t know who is (or was) behind the OakwoodListserv Twitter account, I don’t live in Oakwood, and the neighborhood can run its listserver any way it chooses, but I am a little surprised and saddened that a neighborhood as welcoming and diverse as Oakwood would react so strongly to differing opinions. Filing knowingly-false DMCA takedown requests always raises my ire, too. This neighborhood has stood strong for over 100 years. Surely a few critical tweets won’t cause it to crumble.

Sometimes the best response to someone poking fun at you is no response at all.

Update 3/18: This post has gotten some attention lately, so let me add some comments.

First off, thanks for the blog love. I write it as much for my benefit as anyone else. Yes, it’s exceedingly geeky and filled with acronyms. So am I. If you find it confusing or boring there are plenty of cat videos to watch elsewhere on the Internet.

On the other hand, if you want to know why I take hiding behind the Digital Millennium Copyright Act so seriously (and why you should, too), I suggest you check out the work of the Electronic Frontier Foundation (EFF.Org). You may also read this TechDirt story that describes how the DMCA runs counter to freedom of speech.