A group of music publishers have submitted another filing in their ongoing legal battle with X - or Twitter if you prefer - hitting back at the social media firm's motion for dismissal.
They dispute X's interpretation of US copyright law regarding what is required to hold it liable for copyright infringement. But then also claim that - even if the court accepted X's interpretation of the law - those requirements have been met.
The music publishers filed their lawsuit in June, alleging that X "fuels its business with countless infringing copies of musical compositions, violating publishers’ and others’ exclusive rights under copyright law”.
It was a long time coming. Long before Elon Musk's acquisition of Twitter and the subsequent rebrand as X, the music industry criticised the social media company for never securing music licences despite allowing users to post videos to its platform that routinely contain copyright-protected music.
If the case gets to court, the dispute will likely focus on the good old copyright safe harbour. X can avoid liability for copyright infringing content uploaded by its users providing it has takedown system in place to deal with infringement and infringers when made aware of such things by copyright owners.
X does have a takedown system, but the publishers argue that it is insufficient for the social media company to avoid liability via the safe harbour in the US Digital Millennium Copyright Act. This means that X would have to demonstrate how its takedown system is, in fact, super duper.
That said, in its response to the publishers' lawsuit last month, while X did reference its takedown system, the social media firm mainly outlined other reasons why the publishers have failed to prove it is liable for any copyright infringement.
Liability for direct infringement would require evidence of 'volitional' conduct on X's part, it insisted, while liability for contributory infringement would require evidence of "active steps with the intent of encouraging infringement”.
But, say the publishers in their new legal filing, there are no such requirements in law. And even if there were, they reckon they have provided sufficient evidence to show volitional conduct and intent to encourage infringement on X's part.
As for liability for so called vicarious infringement, X was keen to stress in its motion for dismissal that that would require it to profit from users uploading unlicensed music to its platform.
The publishers agree on that point but add: "Even when X learned of repeat infringement, X rarely suspended or terminated those accounts, because the infringing activity furthers its financial interests. In X’s own words, 'people are more likely to follow a music-related account than any other type of account on [X]', providing X with popular tweets and accounts to monetise via advertising and which act as a draw to its platform".
With all that in mind, the publishers state: “The motion to dismiss filed by defendant X Corp should fail in its entirety”.