Elon Musk’s tweets are in the spotlight as the music industry’s copyright legal battle with Twitter - or X if you insist - continues to unfold. The industry argues that tweets from the now trillionaire Musk incite copyright infringement, but X claims that its owner and Chairman is being misquoted in court filings.
The music publishers leading on this litigation are trying to stop X from using the controversial Supreme Court ruling in the major labels v Cox Communications case as a basis to have their lawsuit dismissed.
If X succeeds in that mission, it will not only impact on the music industry’s dealings with Musk’s social media platform, but it will also ensure that the Cox ruling has a much bigger and more damaging impact on the music industry’s ongoing effort to crackdown on online piracy.
Unlike most of its competitors, X has never secured music licences, despite hosting a huge number of videos that contain music. The publishers initially sued X for two kinds of copyright infringement - ‘direct infringement’ because it hosts videos containing unlicensed music and ‘contributory infringement’ because it facilitates the direct infringement of its users.
However, in 2024 the judge overseeing the case, Aleta A Traguer, cut the direct infringement claims from the lawsuit, leaving just the contributory infringement claims. In the long-running legal battle between the majors and internet service provider Cox, the ISP was also accused of contributory infringement.
When the Supreme Court found in favour of Cox earlier this year, judges in the top court set an important precedent that basically narrowed the definition of contributory infringement, so it only applies if a company provides a service that is “tailored to infringement” or if it “induces infringement”.
Shortly after that ruling was made, X told Traguer that the precedent set by the Supreme Court meant the music publishers’ lawsuit against the social media company must also fail. It repeats that position in a new court filing that was submitted last week.
It writes, “in this case, music companies are suing an online service because some of its users committed copyright infringement”. The music industry “asserted the same theory against Cox”, it adds, but after initially “obtaining a $1 billion jury verdict” in their favour, the majors “lost unanimously in the Supreme Court”. And “that ruling should be the end of this lawsuit”.
Last month the publishers updated their litigation adding specific allegations for how X and Musk have “induced infringement”, in the hope that their copyright claim can stand despite the ruling in Cox. Among other things, they argue in that updated lawsuit that “X knows that individuals expect to be able to use music on social media platforms”, adding “X expressly admits that”.
And yet, despite that fact, X operates without any music licences. Which means, X “clearly intends” for copyright infringement to occur on its platform, because “it actively promotes the use of commercial music on its platform and has chosen to proceed with a business model fuelled by infringement rather than licences”. Which, the publishers hope, is enough to say X induces infringement.
But in case it’s not, the publishers also quote tweets from Musk, which they argue encourage X’s users to infringe. The controversial owner of X, they say, “has recommended posting music or concert videos on the X platform and has advised users whose infringing video posts have been taken down how to get away with keeping such infringing posts up”. These statements, “incite infringement, rather than curtail it”.
They also note how Musk once “told his 200 million-plus followers on X that the Digital Millennium Copyright Act” - the US act that says digital platforms must have takedown systems in place that allow rights owners to demand that infringing content be removed - is a “plague on humanity”, demonstrating the X owner’s position on copyright.
But in X’s new court filing, the social media company hits back at the suggestion that it or its owner has done or said anything to induce copyright infringement.
Distinguishing itself from the file-sharing platforms of the late 1990s and 2000s that first prompted the music industry’s battle with online piracy, it says, “X is hardly some would-be Napster successor; it is a social media platform that hundreds of millions of people use every day for lawful purposes. Holding such a platform liable for inducement would be unprecedented”.
And the publishers’ “allegations about Elon Musk’s public statements” also fail to demonstrate inducement, it insists. The publishers, it says, “truncate those statements to make them seem incriminating – such as by excising ‘overzealous’ from Mr Musk’s sentiment that ‘overzealous DMCA is a plague on humanity’”.
“Read in context”, it goes on, “his statements were innocuous”. But “even taking the complaint’s incomplete quotations at face value”, it says, Musk’s comments on US copyright law are mild compared to the “fuck the DMCA” statements made by Cox executives which weren’t enough to persuade the Supreme Court that the ISP had induced copyright infringement.
Therefore, it then concludes, none of the Musk tweets quoted or alluded to by the publishers “plausibly suggests that X encouraged its users’ infringement”.
We await to see what Traguer makes of all this. Though, given the definition of contributory infringement set in stone by the Cox ruling, it does feel like the publishers now face a much tougher challenge in winning this copyright dispute with X.
But if X wins, that will mean it - and other social media platforms - can continue to host huge quantities of user-uploaded videos containing unlicensed music, while operating DMCA takedown systems that record labels and music publishers believe are inadequate, and there’ll be very little the industry can do about it.
Which will be a significant setback caused by the Cox ruling, which will in turn likely prompt calls in Washington for copyright law reform to close the loophole Cox has created.