EIP Corporate Training
You need to know
Trump Class Action Lawsuit: A Win for Copyrights – Ep. 34 [Podcast]
Table of Contents
Trump Class Action Lawsuit: A Win for Copyrights – Ep. 34 [Podcast]
Summary:
In this episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss issues that pertain to social media platforms and copyright infringement. Donald Trump and other plaintiffs filed class-action lawsuits against Facebook, YouTube, and Twitter. Under Section 230 of the Communications Decency Act of 1996, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although this provision seems to prevent certain liability, it does not seem to provide an exemption from vicarious copyright infringement. Section 230 also states that no such provider or user shall be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This provision seems to allow a provider or user to take down infringing material without a trial or any other adjudication. The First Amendment to the US Constitution prohibits the federal government from – among other things – making laws that restrict the freedom of speech. Later, the Fourteenth Amendment to the US Constitution applied this prohibition – and others – to the states. The Constitution does not, however, prohibit private enterprises from restricting speech; some people have suggested that certain private organizations, such as certain social media platforms, have become so big that they are almost akin to government organizations, and therefore the First Amendment should be applied to them, as well. Senator Thom Tillis, the Chair of the IP Subcommittee, has advocated for social media platforms to stop copyright infringement. Senator Tillis has argued that because these platforms remove political content that they deem objectionable, they should – and can – also remove content that infringes copyrights. However, the ability to remove political content does not necessarily imply an ability to determine whether content infringes a copyright. If someone sends a take-down request to a social media platform, that can suggest that they are the owner of an infringed copyright, but it might not prove it. The platform might have no way to know that posted content is copyrighted. Also, the platform might have to way to know whether an individual is the actual owner of any copyright, if one even exists. Contributory copyright infringement occurs when someone knowingly induces or causes someone else to commit copyright infringement, or when someone knowingly materially contributes to someone else’s infringing conduct. Someone can be liable for vicarious copyright infringement when these three conditions are met: 1) they have the right and ability to control someone else’s infringing activity; 2) they fail to control such activity; and 3) they directly financially benefit from such activity. It’s possible to have a copyright without registering with the US Copyright Office; most copyrights are probably not filed with the Office. A social media platform could theoretically provide individuals with a tool to search the platform for infringing content, and could also theoretically provide a quasi-judicial proceeding to adjudicate whether an alleged copyright owner actually owns the copyright at issue. Tom Colson loves Ray Guarnieri’s Buffalo Boys, which is an excellent movie that is free to watch on Amazon Prime.
Sources:
https://www.jdsupra.com/legalnews/instagram-embedded-in-class-action-9107021/
https://www.klemchuk.com/ideate/twitter-sued-over-alleged-copyright-infringement
https://www.copyright.gov/docs/regstat072204.html
https://en.wikipedia.org/wiki/Thom_Tillis
Transcript:
Raymond Guarnieri:
Donald Trump files a class action lawsuit against Facebook, YouTube, and Twitter. Will the former President’s battle cry in the fight against censorship resurrect debate over section 230 and the copyright reform. All this and more on today’s episode of Stuff You Should Know About IP. Today’s episode of Stuff You Should Know About IP is brought to you by the Patent Lawyer Magazine. If you want to stay up to date with everything that’s going on in the world of IP and patents, go to www.patentlawyermagazine.com. Each issue is free to read for up to eight weeks. That’s www.patentlawyermagazine.com or global news and the world of patents. All right, Tom, once again, we get to talk about everybody’s favorite, or least favorite, president and still keep the discussion related to IP. So, what’s up with the –
Thomas Colson:
That’s right, that’s the key thing right there. So, when I got up this morning, I didn’t think I’d be spending an hour and 10 minutes figuring out what 230 of the Communications Decency Act of 1996 was. And when you and I got out of the pool this morning at 7:30, I think it was, after our workout, I wasn’t bracing myself for this, but it was like a rapid fire of information for an hour and 10 minutes, trying to figure out how Trump’s action relates to copyrights. And basically let me just frame it, okay?
Thomas Colson:
So 230 of the Communications Decency Act of 1996 has two provisions that I’ve been thinking about. One, and I’m just going to read them here. Okay. This is like a quick summary of them. One is “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Okay. So, this is to prevent them from being sued, I guess, for whatever words are published or videos are published on their platform. But, and this is kind of foreshadowing 10 minutes down in our podcast.
Raymond Guarnieri:
Okay
Thomas Colson:
And that is, it doesn’t seem to exempt them from vicarious copyright infringement. At least this doesn’t, okay. Now remember this was 1996. Were you even born yet, Ray?
Raymond Guarnieri:
Oh, I was born. I was born, yeah.
Thomas Colson:
Okay. So, 1996, though –
Raymond Guarnieri:
I was seven, six.
Thomas Colson:
Seven.Okay. So these are the early days of the internet. The internet is just emerging.
Raymond Guarnieri:
Welcome. You’ve got mail.
Thomas Colson:
A lot of people didn’t even know what .com was in 1996, this is really early days. So, the next provision is that’s relevant here. “No provider shall be held liable for any action voluntarily taken in good faith to restrict access to or availability of material that provider or user considers to be obscene, lewd, lascivious, filthy.” I love that one. The word filthy just generally filthy, right? “Excessively violent harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Okay. So, the first one that’s interesting is it doesn’t seem to exclude vicarious copyright infringement. The second component I noticed means that they can take down infringing material without trial or other adjudication. I mean, the thing was intended maybe for other reasons, but it does touch copyrights. Trump’s action doesn’t.
Raymond Guarnieri:
Can you go back a second because there’s one thing I didn’t understand in that.
Thomas Colson:
Sure.
Raymond Guarnieri:
When you say they can take down, do you mean –
Thomas Colson:
Twitter, Facebook –
Raymond Guarnieri:
You mean social media.
Thomas Colson:
Social media platforms, yes.
Raymond Guarnieri:
Okay.
Thomas Colson:
They can take it down.
Raymond Guarnieri:
They can censor their own platforms.
Thomas Colson:
Well, keep in mind, the big picture is the first amendment to the US constitution says that the government, basically Congress, shall make no laws that restrict freedom of speech. And that applies to the states through the 14th amendment. But it doesn’t say private enterprises can’t do that.
Raymond Guarnieri:
Okay.
Thomas Colson:
So, I’m only going to talk about the Trump situation for a moment only because that’s what got us thinking about this.
Raymond Guarnieri:
Right, yeah.
Thomas Colson:
So, his basic complaint seems to be that it’s censorship somehow it’s government censorship. And what kind of strengthens his case a little bit, and governments… Keep in mind, these are private organizations, but either you could say they’re so big and so powerful that they’re kind of like quasi government organizations. And that sentiment is sort of strengthened by what the Biden administration is doing right now, which is they’re working with Facebook to, as they say, “flag problematic posts that spread disinformation.” So, it’s almost like the government is partnering with this private organization, which is Facebook to censor. So, the argument of whether Facebook and Twitter and Instagram are private is a little tiny bit fuzzy, which is I think what the Trump administration, and others, he’s not the only plaintiff on these cases. There are other, maybe they’re tokens, but there are other plaintiffs as well.
Raymond Guarnieri:
I have a side question that’s might be a bit of a tangent, but when the company, the private company, or a private company, is working with the government in some form or another, is that making them akin to like a public utility? Because I know… Aren’t there similar restrictions or there’s some arguments being made that are trying to make the social media companies somewhat on the same level as the phone companies.
Thomas Colson:
Okay. Well, keep in mind. When we’re talking about the First Amendment and again, we’re going to get to IP, but when we’re talking about the First Amendment, originally, go back in time, right after the Constitution was ratified by the States, they passed the Bill of Rights, and the First Amendment, it includes free speech, among other things. But initially, it only applied to the federal government. Because it’s a federal constitution, not a state constitution. Over time that was applied to the states through the 14th amendment.
Raymond Guarnieri:
Right.
Thomas Colson:
So, it wasn’t intended for the states, but now it applies to the states. The next leap, it seems, will be can it also be applied to any private organizations that have become so big, like you said, that maybe they’re a kin to a government organization? And, we don’t know at this point and maybe the Trump lawsuit will ferret that information up.
Thomas Colson:
It’s a great question, though, because look at, and by the way, I’m not a Trump supporter. I’m not a Trump and I’m not anti-Trump. I’m truly a moderate, so, I don’t have a dog in this fight. But, if you look at what happened to Trump in January when he was blocked from Twitter and Facebook, and I don’t know if you’ve blocked from Instagram, and others, I haven’t heard anything from the guy in what, five months. So it has truly shut him down. I mean, don’t get me wrong. I’m sure people that are like really hardcore Trumpers, they’re eliciting to whatever areas, posted stuff. But, I’m just a regular, moderate kind of guy. And I don’t hear anything about them anymore. So, it has truly stopped free speech of a former President. So, I don’t know what the result’s going to be, but it seems to me that this is an area that should be litigated.
Thomas Colson:
But let’s go to the IP part, because why does any of this have to do with IP? Because when you first sent me this, I thought, Ray, you’re totally off base here, right? This doesn’t apply to IP.
Raymond Guarnieri:
Wow. I surprised you.
Thomas Colson:
You did.
Raymond Guarnieri:
I love it. It’s a first.
Thomas Colson:
You totally surprised. But then I looked, and the person who brings it into the IP context is a guy named Thom Tillis. He’s a Republican Senator from North Carolina. I think he’s in his first term, he’s the chair of the IP subcommittee. And he’s pretty much advocating and he’s sending letters to Jack Dorsey. He’s really been an advocate of social media platforms to stop copyright infringement. So in fact, he says, here’s what his quote is, which I think he’s off base, but we’ll talk about why. His quote is “Don’t you think that if Twitter can track and take down political content that it also has the ability to take down content that infringes the IP of hardworking American creators?” So, basically he’s saying if you’re skilled and capable of censoring political discussion, why can’t you stop infringement?
Raymond Guarnieri:
Right.
Thomas Colson:
So, when I read that, my first thought was, Thom Tillis has no idea what is involved in IP and taking down infringing stuff. He has no idea what he’s talking about. But then I quickly did a Wikipedia search on his background, and he’s actually a pretty smart guy. He worked for, I think PriceWaterhouse, or one of the big, big accounting consulting firms. Then he worked for IBM, then he became a partner at PriceWaterhouse or something. I might be wrong, it might’ve been Anderson, but one of those, he became a partner. He’s clearly a bright guy. So, then I thought, okay, what’s he thinking? So, he’s saying that essentially the fact that platforms are exercising political censorship undermines their excuse for failing to stop copyright infringement.
Thomas Colson:
But what I’m saying is those are two totally different things, and here’s why. If I want to stop people from talking about election fraud or COVID, I can search posts for election fraud and COVID, and I can kind of scroll through them and if anything doesn’t abide by my agenda, I could shut it down. But think about copyright infringement. How do you know what is infringing a copyright and what isn’t infringing a copyright? You can’t do a search on copyright infringement, there’d be no text on that. You can’t search for any specific stuff because how do you know what’s protected by copyright?
Thomas Colson:
If you’re a big platform, you have no way of knowing if something is infringing a copyright. You have a suspicion if someone sends you a take-down request. Hey, they’re infringing my copyright. You still don’t know because it hasn’t been adjudicated, but you have a suspicion. But to say that if you can censor political discussion, you can find and stop infringers, that just seems totally different to me. I’m not saying they can’t do it. These are brilliant technologists that can come up with magical ways of doing stuff. I’m just saying, Thom Tillis seems to be mistaken. It’s like comparing apples and oranges, it’s just two totally different problems to solve.
Raymond Guarnieri:
Perhaps a better argument would be that they could be doing better than they are.
Thomas Colson:
Or they could be putting more resources into it, maybe, or something like that.
Raymond Guarnieri:
Sure, yeah.
Thomas Colson:
Like if you’re enthusiastic enough to put money into this, maybe you could put money into that. And, that’s a perfectly fine argument. It’s a better argument than saying if you can build a bridge from Grand Island to across the Niagara River, you can also build a spaceship. Just two totally different things. And we can clearly do both. Humanity can do both, but it’s different people, it’s different skills, it’s totally different things. So anyway, it got me thinking. First of all, are they even infringing, right? Are these platforms doing anything in the area of copyright infringement? So we know,
Raymond Guarnieri:
Platforms or the user?
Thomas Colson:
Platforms. Yeah. The platform, yeah. Users might be infringing. I mean, what is copyright infringement? If you make a copy, if you distribute a copy, if you make a derivative work, those are actions of copyright infringement.
Thomas Colson:
So, Ray, you made the movie Buffalo Boys, right?
Raymond Guarnieri:
Yeah.
Thomas Colson:
Great movie, by the way. I love that movie Buffalo Boys.
Raymond Guarnieri:
You can get it on Amazon Prime.
Thomas Colson:
Yeah, Amazon Prime.
Raymond Guarnieri:
Get Amazon Prime. It’s free to watch.
Thomas Colson:
That’s right.
Raymond Guarnieri:
I’ve got to plug it now that you brought it up.
Thomas Colson:
So, if I take Buffalo boys and I post it, I’m infringing your copyright in Buffalo Boys. The question is if I post it on Twitter as a video, or your Facebook or something, are they committing copyright infringement? Well, we just read section 230 of the Communications Decency Act of 1996. It says that “No provider user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” So, if I steal your Buffalo Boys, post it, they’re not considered the publisher, so they’re not committing copyright infringement. I get that. But, it doesn’t seem to address the issue of vicarious copyright infringement.
Thomas Colson:
So, there’s two basic kinds of infringement that are not direct copyright infringement that we think about, contributory infringement and vicarious copyright infringement. In other words, you didn’t infringe, but you help the person in such a substantial way that you should be responsible as an infringer, as well. So, contributory infringement is essentially, and I’m just going to read a quick summary, with knowledge of infringing activity. I posted Buffalo boys. That’s infringing activity. This person induces, causes or materially contribute to the infringing conduct or of another. That’s contributory copyright infringement. Now, vicarious copyright infringement is if you have the right and ability to control the infringing activity, which under 230, they do, right?
Raymond Guarnieri:
Yeah.
Thomas Colson:
You do have the ability to control the infringing activity, you can stop it. And then number two, they have direct financial benefits from that activity. Hell, yes, right? I mean, they are in the content game. They need more content that people can click on. So, it seems like, now let’s ignore the fact that there might be a copyright law out there that protects them, that Ray and Tom don’t know about. We just started thinking about this two hours ago. So, if we had a day, we could search it and find out whether they’re going to be held liable. But, I did notice there are a bunch of lawsuits pending right now against these social media giants for vicarious copyright infringement liability.
Raymond Guarnieri:
Oh, wow.
Thomas Colson:
So, clearly, and I’d read a couple of quick complaints in that 70 minutes that I had to prep for this. And they’re interesting and they’re unresolved. And I don’t know that both complaints, but there’s one which is… Let’s see, a photographer named Kristin Pearson is suing Twitter for essentially copyright infringement. So, her allegation is this. She told Twitter that there was an infringer and it’s somebody named, I forgot the name of the person who’s infringing, but somebody posted her for photographs on Twitter. She sends a notification to Twitter, this person’s infringing me. Twitter takes 90 days to take it down. She claims that in that 90 days, she was substantially damaged. And she’s saying that they are responsible because essentially they’re vicarious infringers.
Thomas Colson:
They knew it was infringing, they didn’t take it down, and they financially benefited from it. Now, I don’t know the outcome I saw the case was filed November 14th, 2017, I think. Or sometime in 2017, it might’ve already been adjudicated, but I don’t know the answer to that. But, if you think about it, so let’s just go back to what they’re doing. They have the right and ability to control the infringing activity, which they do. They can take it down and they get a direct financial benefit from that activity. It sounds like vicarious copyright infringement. And then if you go back to section 230, it does say that they’re not the publisher, but it doesn’t seem to discuss whether they’re a vicarious copyright infringer.
Thomas Colson:
And section 230, also again, gives them the right to take it down. Basically, if they even think it’s objectionable or filthy, I love the word filthy in there. But it’s clearly not filthy.
Raymond Guarnieri:
[inaudible 00:17:49].
Thomas Colson:
It’s objectionable. So, they could clearly do it. But here’s the question, here’s the issue? How do you solve this problem? Let’s say that you’re trying to legislate a solution because social media is here to stay. I mean, how much of a burden would it be to have to sum out, regardless of what Thom Tillis says, if you could do this, you can do that, totally different things. How do you legislate such that social media giants can stay in business and continue to thrive, but also put precautions in place? And what I was thinking is they clearly can’t search material, because, keep in mind, you don’t have to file a copyright registration at the US copyright office in order to have a copyright.
Thomas Colson:
The moment you sing a song and it’s recorded, the moment you write a script and it’s recorded, film a video, you have copyright protection. You don’t need a formal registration. Now, you get other benefits from having a formal registration. So, it’s not like Twitter or Facebook can somehow search the archive at the copyright office and compare words that are published or videos that are published on their site, because most copyrights probably aren’t filed with the copyright office.
Raymond Guarnieri:
Right.
Thomas Colson:
So, how do they do that? And what I was thinking is they might already have this. Number one, they could provide tools for people like Ray, who could easily go out and search. Every day, you run an automated search and see if Buffalo Boys is published by somebody. Now Ray has proof.
Raymond Guarnieri:
Right.
Thomas Colson:
Then, a mechanism for Ray to submit that to Twitter or Facebook or whoever, which provides a little proof, because what if I’m the owner of Buffalo Boys and I’ve got it up and you send the notice to get me to take you down because you hate me? Because you feel like that one day in the bar, when we were talking about it, it was your idea and not my idea.
Raymond Guarnieri:
Right, yeah.
Thomas Colson:
So, you’re just pissed. You don’t own it, I do own it –
Raymond Guarnieri:
I can totally see that happening.
Thomas Colson:
Oh, yeah. Or just an angry ex-lover or something. Who knows what it is, or a political rival, whatever. The point is, you can’t just say, “Oh, I told you, therefore, you know it’s an infringement” because it hasn’t been adjudicated yet. So, maybe the first step is give Ray tools that Ray can find potential infringers, that Ray believes are infringers.
Raymond Guarnieri:
Right.
Thomas Colson:
Number two, have some kind of an adjudication process. Now it’s not a judge, because this is not a legal proceeding, but some kind of quasi judicial proceeding, again, it’s a private company, they could take down whatever they want. But if we want to make it fair, they should have an arbitrator. Maybe the legislation is that these big giants have to have copyright arbitrators on staff to have rapid hearing so that Ray and Tom can go on Zoom in front of an arbitrator, and I can say, “Look, here’s my proof that I came up with it.” And then Ray could say, “No, we were at that bar. I was on my third beer and I told you this idea.”
Thomas Colson:
Whatever that is so that the arbitrator can then make it more fair. Again, this is not a court proceeding. It’s a private company that’s kind of got this quasi government feel to it because it’s so big. And so, maybe an arbitrator kind of thing would be there. And then, maybe there are so in the legal world, in the real legal world, there’s something called a temporary restraining order. And another thing is a preliminary injunction. And I know you’ve heard of those because we’ve discussed them.
Raymond Guarnieri:
Yeah.
Thomas Colson:
Essentially, what we’re saying is Ray wants to sue Tom for copyright infringement, but it’s going to take years to get through trial. Could take a year and a half, two years maybe longer. But there’s going to be so much damage that you will be irreparably harmed if somebody doesn’t take this down now. So, you seek what’s called a temporary restraining order or a preliminary injunction, which essentially lets the court stop me from allegedly infringing until the adjudication cycle is complete. Maybe there’s something like that, you know. Like Twitter, if you get this level of proof and the arbitrator who is kind of a neutral arbitrator set, it’s kind of a hearing. If they say it’s enough, it’s kind of like a preliminary injunction. Then you go through the court system. And when the results of the court system come out, if you lose, they get to put it back up. If you win, you get your penalties in the court system. Something like that, but I got to tell you, this is a hard problem to solve.
Raymond Guarnieri:
Yeah. So I have a question. Say we’re both on Twitter, you post my movie, Buffalo Boys. There’s nothing stopping me from suing you for copyright infringement, correct?
Thomas Colson:
Nothing, right. Absolutely.
Raymond Guarnieri:
That happens to be the medium that you use.
Thomas Colson:
Right. The take down notice is kind of like I say, it’s got the flavor of a TRO, temporary restraining order or preliminary injunction, that flavor. Yes, you can sue me, but you want action quicker because every day you’re losing money and copyright infringement litigation in federal courts, doesn’t go that quickly. I mean, in the best case scenario, maybe a year and a half or so, right?
Raymond Guarnieri:
Right.
Thomas Colson:
And again, Twitter and Facebook and Instagram and others, I’m pretty sure they have the right to take it down if they want, because you know what we read at 230 doesn’t seem to restrict them from doing so. In fact, 230 gives them the right to take anything they think is filthy down or otherwise objectionable down. So, they have the right to do it.
Thomas Colson:
The only question, though, to me is, is it fair? I mean, Trump’s situation is totally different. He’s talking about censorship, we’re talking about intellectual property. So, there are different questions of fairness. In the Trump case, he’s, is it fair that you’re shutting me up when we’re in a nation of free speech? Which by the way, I totally value. I don’t take sides on a lot of things, but, if you go down my street with a sign that says short bald men are evil, I will defend your right to do that because that’s how much I believe in free speech. But, in this case, however that works out, it works out. But getting to the copyright side, is it fair that Ray can tell Twitter to shut my version of Buffalo Boys down with no adjudication? I don’t know if it’s fair.
Raymond Guarnieri:
I don’t know. It’s a good question because with no way of knowing whether or not it truly is copyright infringement or, like you said before, you’re trying to get back at your ex or something.
Thomas Colson:
Either way, it could be a tragic loss. If you force me to take you down and I really made it, that sucks for me because now I got to wait until we go through court or something.
Raymond Guarnieri:
Yeah. It’s a lose-lose.
Thomas Colson:
But if I didn’t make it and you did, if you can’t take it down, that sucks for you, right?
Raymond Guarnieri:
The other interesting thing about this that we haven’t really touched on so far is this is one game for the music industry, for the big record labels, for Hollywood, for the big movie distributors. And, it’s a totally other game for, Mike Yarai the guy who did our wedding photos for my wedding.
Thomas Colson:
Yeah, right, who had barely any money.
Raymond Guarnieri:
Right. He’s a small business, sole proprietor. They don’t have typically the kinds of resources that you need to sue some, Twitter farm, some other company that’s just re-publishing stolen content from small players, where it could be a hundred person company in China or some other relatively remote part of the world where –
Thomas Colson:
Totally.
Raymond Guarnieri:
It’s not as easy to take a legal action against.
Thomas Colson:
You’re right. That’s a real problem for the little guy. And by the way, the little guy gets screwed in everything.
Raymond Guarnieri:
Yeah, it’s true.
Thomas Colson:
I mean, the legal system is totally stacked against the little guy –
Raymond Guarnieri:
Because it’s expensive.
Thomas Colson:
Yeah. Let’s say you’re Mike Yar, your wedding photographer, he has a picture that being stolen by somebody. So, he sues Twitter, right? He can’t afford to pay a lawyer because who can? So you say, I’ll just get a lawyer to take it out of contingency. Great. But you need find a lawyer who thinks it’s a big enough case to take it because they get a third, right?
Raymond Guarnieri:
Right.
Thomas Colson:
Now, Mike Yar’s videos probably aren’t going to be worth $10 million. They’re probably going to be worth $300. So, no law firms going to sue Twitter, which will cost them a fortune just to get Mike Yar protected. So, the little guy gets screwed. So, that’s why I liked the idea of these take down notices because it does give a little leverage to the little guy, but then it doesn’t take into account that the little guy might be an ex lover.
Raymond Guarnieri:
Right. And then, here’s another question. What is a reasonable burden for the tech company to have to endure in order to go through this process?
Thomas Colson:
Exactly, exactly.
Raymond Guarnieri:
Twitter’s a big company, but they probably can’t afford to hire a thousand arbitrators just for this one purpose. I mean, maybe they can, but is that reasonable?
Thomas Colson:
That’s the balance. You know what I’d like to do? Have a conversation with Jack Dorsey about this, right?
Raymond Guarnieri:
We should invite him on the podcast. Jack, I know you’re a long time listener.
Thomas Colson:
I’m sure he’s listening every podcast and we have like millions of listeners, so it might be good for him. But I’d like to ask… It doesn’t have to be Jack Dorsey. How much can they afford to do with respect to arbitrators? And again, maybe that’s not the answer, we only had 70 minutes to prep this. But, I’m sure if we had more than 70 minutes, we could come up with some other ideas. But, what about all the big brains in Congress?
Raymond Guarnieri:
Another interesting, it was buried in that Tillis letter to Jack Dorsey. But in there, one of the things that he asked about was if, and how, it’s not a question of if, but how Twitter is allowing backend access to the database to potential victims of infringement to search the platform as to whether or not their content is being infringed upon. And, it was indicated in the letter that they are doing that, but they’re charging people –
Thomas Colson:
But they’re charging. Right.
Raymond Guarnieri:
And at least the accusation is that they’re charging these exorbitant fees to be able to do that.
Thomas Colson:
Right. But here’s the thing. Yeah, so that’s what Tillis asked him. How do you get the APIs to access the backend, to see if you’re infringing. But that still doesn’t solve the problem that you might not have created Buffalo Boys.
Raymond Guarnieri:
Right.
Thomas Colson:
I might’ve created it.
Raymond Guarnieri:
Yeah, yeah.
Thomas Colson:
By the way, for the record, we know that you created it. But the point is, even if I get –
Raymond Guarnieri:
We’ll get you a special thanks in the credits.
Thomas Colson:
There you go. Yes, exactly.
Raymond Guarnieri:
Even though we made it 10 years before we met, but –
Thomas Colson:
That’s right.
Raymond Guarnieri:
Neither here nor there.
Thomas Colson:
That’s right. So yes, we need the tools. And I love that question that Tillis asked, which is how can people like Ray get access to the platform to see if there’s infringers? Absolutely. But, it doesn’t solve the problem.
Raymond Guarnieri:
It still doesn’t solve the problem.
Thomas Colson:
It helps it, it mitigates the problem a little, because I’ll bet you nine times out of 10, or maybe even 95 out of a 100, if you are the publisher or you are the owner of it and they are infringing you, and if they take it down, it’s great. The person who put it up is, Oh crap, it’s down. But, I don’t know, because I don’t have any data on that, but it seems like we need the second part. And maybe it’s 95 out of a 100 times, it’s taken down the person who was doing it illegally is, Ah, crap. We lost our revenue source. Let’s find another one that we can steal.
Thomas Colson:
But 5% of the time, or 2% or 1% or whatever, it’s wrong, they’re not infringing. In those cases, they should be able to send back, No, we want our hearing with the Twitter arbitrator or the Facebook arbitrator, which is pre trial. It’s pre-trial system, it’s pre court system. It’s not part of the court system. It’s kind of like Twitter trying to be fair. They could take it down, but we want to be fair. So, then they don’t have to have tens of thousands of arbitrators because it’s only the few cases where someone fires back and says, That’s my ex lover, trying to screw me out of revenues for my legitimately created work.
Raymond Guarnieri:
Right.
Thomas Colson:
You know?
Raymond Guarnieri:
It’s interesting because that conversation about whether or not it is these companies are so large that they essentially become quasi government institutions or
Thomas Colson:
Maybe that’s a question. Yeah, that’s a good question.
Raymond Guarnieri:
It’s interesting because even if you’re not… Let’s say you’re Mike Yarai and you say I’m not going to use Twitter. Right. So, let’s put the burden on the free markets. Right? I’m not going to use Twitter because they’re doing this to people like me and if I use Twitter, they’ll be like me. But here’s the thing. He’s still got a website that people can go to look at and stuff.
Thomas Colson:
Oh, yeah. Right.
Raymond Guarnieri:
Everybody knows how easy it is to just take a photo and put it somewhere else from a website.
Thomas Colson:
Yeah, he doesn’t have to be a Twitter user.
Raymond Guarnieri:
I mean, I decided I wanted to become a wedding photographer, which I’ve never done before. I could just go to Mike’s website, copy all his photos, put them up on Twitter and say, here’s an example of my work, here’s my phone number.
Thomas Colson:
Yes, yes.
Raymond Guarnieri:
I’m a wedding photographer.
Thomas Colson:
Exactly.
Raymond Guarnieri:
And Mike doesn’t even have a Twitter. So it’s kind of, even if the free marketplace… I mean, I could be wrong about this, but it doesn’t seem like even that can decide or can prevent this –
Thomas Colson:
No, no.
Raymond Guarnieri:
Because even though you choose not to use it, other people can still steal your stuff and will use the platform to steal your information.
Thomas Colson:
So, the conclusion of this podcast is maybe Jack Dorsey calls us and he comes on our podcast and let’s have a discussion with him about it.
Raymond Guarnieri:
He can provide reassurance and he can even submit the episode to Senator Tillis as evidence that they’re making progress.
Thomas Colson:
And he can even sit right there in your room with you. You guys could sit right next to each other, you’d be rubbing shoulders, literally. That’d be good. I’d even come over. We could have a steak dinner afterward at your house. That’d be good.
Raymond Guarnieri:
I think he’s vegan.
Thomas Colson:
Okay. Well, we’ll have a vegan burger because our Tim Banker, our own Tim Banker, is a vegan. So, we’ll connect them.
Raymond Guarnieri:
We can show them the episode on the podcast that we did on the incredible burger.
Thomas Colson:
Exactly.
Raymond Guarnieri:
Is it incredible or –
Thomas Colson:
Right, exactly. Yes, I know. By the way, I’m seeing –
Raymond Guarnieri:
Now, if you watch the podcasts, we’re making inside jokes –
Thomas Colson:
That only our fans will get.
Thomas Colson:
That’s right. That’s right. So, I think what I’m hearing is Jack Dorsey has no reason not to join us.
Raymond Guarnieri:
Yeah. Hey, if he hasn’t seen Niagara Falls yet, that’s a reason in and of itself.
Thomas Colson:
That’s right. Take him on a walk down the Gorge. Love it.
Raymond Guarnieri:
All right, everyone. I thought this discussion was interesting and I hope you share the same opinion. And if so, please like comment, subscribe, share, and tune in next time for stuff you should know about IP.
Recent posts:
Trump Class Action Lawsuit: A Win for Copyrights – Ep. 34 [Podcast]