A US court has cut back the copyright lawsuit filed by a group of music publishers against X, or Twitter if you prefer. However, the litigation has not been entirely dismissed - as X requested - with a claim of contributory infringement allowed to proceed in relation to three specific allegations made by the music companies regarding how X deals with copyright infringing content posted to its platform.
Those specific allegations, judge Aleta A Traguer writes in her ruling on X's motion to dismiss, are that the social media firm, "provides more lenient copyright enforcement to 'verified' users; failed to act on takedown notices in a timely manner; and failed to take reasonable steps in response to severe serial infringers".
If the publishers can prove that X is deliberately slack when dealing with takedown notices submitted by copyright owners, it could be held liable for contributing to its users' infringement. Because, as Traguer notes, the US Digital Millennium Copyright Act sets out a process "through which copyright holders may seek the removal of protected content, and with which a social media site must, broadly speaking, comply in order to avoid liability for its own role in the underlying infringement".
Expanding on the first of the specific claims, the judge adds, "particularly striking is the allegation that X enforces its copyright policies less stringently against individuals willing to pay for its 'verified' service. If X truly did allow some users to effectively purchase the right to be able to infringe with less severe consequences, then that was plausibly an instance of 'promoting' X's 'use to infringe copyright'", which case law has "acknowledged as a sufficient basis for liability".
The group of music publishers, coordinated by the National Music Publishers Association, filed their lawsuit against X last June. They claim that X users regularly upload videos that contain songs they control, but - unlike most of its social media rivals - X has never sought licences from the music industry.
With no licences, X is obliged to remove videos containing the publishers' music when made aware of them. X does have a system in place for dealing with copyright infringing content but, the publishers argue, it's a slack system. "Twitter has repeatedly failed to take the most basic step of expeditiously removing, or disabling access to, the infringing material identified by [our] infringement notices”, their lawsuit stated.
The publishers also wanted X to be held liable for direct and vicarious infringement, but Traguer dismissed both those claims. X's involvement in the infringement is too passive to be liable for direct infringement. And, the judge says, the publishers have not sufficiently proven a claim for vicarious infringement which would mean that X was "profiting from direct infringement while declining to exercise the right to stop or limit it".