X has filed a formal response to the $250 million copyright infringement lawsuit filed against it by a group of music publishers. The social media platform you probably still call Twitter says the music companies have failed to prove that it is liable for ‘contributory infringement’, while the request for mega-damages is “unconstitutionally excessive and disproportionate”.
The music publishers’ infringement claim is based on a number of allegations. They say that X has failed to deal with copyright takedown notices in a timely manner, failed to deal with prolific repeat infringers, and applied more lenient copyright enforcement against paying users.
However, X says in its new legal filing that the claim for contributory infringement is barred, because it “did not have the requisite knowledge of the alleged primary infringement and did not cause, encourage, or induce the alleged primary infringement". Not only that, but X has "substantial non-infringing uses", it did not "cause, encourage or induce the alleged primary infringement", and "any infringement was innocent and was not willful".
X was previously successful in getting the lawsuit cut back considerably. As well as contributory infringement, the music companies also accused X of direct and vicarious infringement in relation to videos posted by users onto the social media platform that include unlicensed songs.
The judge ruled that X's involvement in the infringement was too passive to be liable for direct infringement. Also, she said, the publishers had 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".
However, the claim for contributory infringement was allowed to proceed, with the focus now on how X deals with the copyright takedown notices it receives from the music industry. As X has no music licences, it is obliged to remove unlicensed music on its platform whenever it is made aware of it by copyright owners in order to avoid liability under US copyright law.
Most of the new legal filing is taken up with X going through each of the statements the publishers made in their original lawsuit, agreeing with those that provide a simple outline of how X works, and denying those that accuse it of copyright infringing conduct. It then sets out an assortment of defences regarding the infringement claims, as well as taking issue with the damages the publishers are demanding.
The publishers are seeking statutory damages of $150,000 for each of the 1700 specific songs that they have identified as being made available on the Twitter platform without licence, which would exceed $250 million. That damages claim, X writes in its new legal filing, is "unconstitutionally excessive and disproportionate to any actual damages that may be sustained, in violation of the due process clause of the United States Constitution".