This article first appeared in Cyberlaw Currents, a Frankfurt Kurnit legal blog.
On November 2, 2012, Twitter's legal policy manager announced (via Tweet) that it changed its response policy to takedown requests pursuant to Section 512 of the Digital Millennium Copyright Act ("DMCA"). Whereas Twitter previously removed allegedly infringing material (such as Tweets or posted media) identified in a DMCA takedown request without providing any notice to viewers, the company will now mark withheld Tweets and other media with a "Tweet Withheld" or similar message. Practically speaking, this means that Tweets that are the subject of takedown requests will not simply disappear from display to viewers, but instead will be replaced with a message such as "This Tweet from @username has been withheld in response to a report from the copyright holder." Twitter's stated purpose for implementing this policy change is to increase transparency regarding the removal or restriction of access to user posted content.
Twitter's policy shift is a step towards increased transparency. In digital ecosystems where mass communications are stored with centralized platform providers such as Twitter, there is a risk that digital histories – such as the fact that a particular post was made at a particular time by a particular user – can be simply "disappeared" when assertive rights holders take actions to protect their copyright. Twitter's new approach recognizes that there is inherent informational and historical value in the fact that a particular Tweet or post was made, a value that is separate and apart from the copyright-protected content of the Tweet or post itself. Accordingly, going forward, Twitter viewers will have the ability to know that a Tweet was made by a certain user at a certain time, even if the contents of that Tweet have been removed due to a claim that they are infringing.
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