We’ve pointed out in the past that Twitter has sometimes been overaggressive in suspending accounts based on questionable DMCA claims. So I was a bit surprised to learn that Twitter is being sued by a photographer for failing to take down images. The Jon Brodkin writeup at Ars Technica, linked here, is incredibly thorough, so it’s worth reading the whole thing. The short version is that photographer Christopher Boffoli got a lot of attention recently for some of his photographs depicting little people next to giant food items. Not surprisingly, a lot of folks shared those photos around, and one popular way to do so was via Twitter. Boffoli claims that he sent a bunch of DMCA notices, including some over images that were hosted directly by Twitter (Twitter used to just allow third party photo hosting services, but launched its own a while back). I’m a bit surprised that Twitter didn’t respond to the DMCA notices by taking down those works.

However, as lawyer Evan Brown correctly explains in Brodkin’s article, failing to take down works upon receipt of a DMCA notice does not automatically make one guilty of infringement. It just means they can’t directly avail themselves of the safe harbors in the DMCA. They can still make plenty of other arguments for why they have not broken the law. And Brown suggests that there are many reasons why they’re likely to prevail:

“If I were Twitter, I would not necessarily be all that concerned about Boffoli’s claims, based on the facts as they appear in the complaint,” Brown said. “It doesn’t look like Twitter has materially contributed to the alleged infringement. Courts have held that just providing a website is not enough to lend material support in another’s infringement. And I don’t see how Twitter is obtaining any direct financial benefit from the alleged infringement. Moreover, I doubt Boffoli will be able to point to any statements on Twitter’s part encouraging its users to infringe copyright. If he can’t show any of these things, his secondary liability claims would appear to be dead in the water. But the lawsuit is just beginning—maybe he has some great facts that will come out later. I’m skeptical, though.”

Part of Boffoli’s claim is that Twitter’s terms of service implicate the company, but I think he’s misreading that:

…he said that Twitter hosts a large volume of his work in violation of his copyright, and under Twitter’s terms of service the company claims a “worldwide, non-exclusive, royalty-free license” to reproduce and distribute that content as it pleases.

That’s not quite accurate. The terms of service just say that the user who is doing the upload is granting Twitter such a license to display the work. If that user does not have the right to grant such a license, than the focus should be on that user and their own infringement.

And it’s here where Boffoli’s arguments get kind of weak. He’s suing Twitter because they’re a big company… but at the same time he claims that he doesn’t mind when people post a few images:

“I’m genuinely humbled and grateful that people are enthusiastic about my work and want to share it,” Boffoli told Ars. “If somebody puts a couple of my pictures on a Tumblr page, thats totally fine.”

So why sue Twitter? Well he claims it’s because “Twitter hosts a large volume of his work.” But… right before that he says that it’s fine for people to post a few images to Tumblr, meaning that Tumblr, too, almost certainly hosts a “large volume” of his work. And his complaints to Twitter focus on four specific users, who each posted images. But he’s not suing the users. And… again, he seems to say that it’s okay for the users to share a couple images via a platform like Twitter and Tumblr. But then… in the same breath he claims that those platforms are then liable? That seems to undermine his case.

Finally, Boffoli and his lawyer seem to both complain about his inability to make money on the images… while also being happy that the images went viral, admitting that they’ve helped raise his profile.

“He gets a ton of notoriety but he doesn’t make a lot of money off it yet,” [Boffoli’s lawyer Keith] Scully said. “He does all his own copyright policing because he can’t afford to hire a legion of lawyers and staff to take care of it for him.”

“I’m just a working artist, trying to support my studio and myself,” Boffoli said. Numerous websites do contact him to ask permission to distribute his work, “which I really appreciate,” he noted. “It gives me a chance to provide the work in context, and even to provide images that aren’t out there yet.”

So… his complaint is that the viral nature of the images made him famous and has created buzz that has resulted in legitimate requests, and he doesn’t mind when individuals post up his work, because that helps him. But for some reason he’s then suing Twitter. As for having to do all of his own policing, perhaps the better answer is to look for more ways to leverage the viral nature of these images. He notes at another point that some of the images don’t link back to him as the original photographer (while others do). Wouldn’t it be a lot more productive to send friendly notes to those who shared his images by just asking them to also promote a link to his website and maybe a way to license or commission works? That would actually keep his works viral and encourage sharing, while also driving more people to potentially give him money.

The more the details come out, the more this feels like a “Steve Dallas lawsuit,” in which he’s suing Twitter not because the company has actually infringed… but because they’re a big company with money who might just pay him.

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