Ashley Madison leak exposes how social networks fall short as news providers

If you use social media for work but you’re still not sure what the Digital Millennium Copyright Act is, this post could save you your reputation and your employer a lot of money.

You don’t have to be a lawyer to read and understand this post. I’m not.

I’ll explain what the DMCA is in a minute. But before I do, you should know that this law is currently being stretched way beyond its originally intended use by adultery site Ashley Madison, which is claiming its stolen customer list is protected under copyright and cannot be published without its consent. It’s also being invoked by a freelance joke writer who is trying to get Twitter to take down tweets from users who stole her jokes and tweeted them without attribution.

In the case of Ashley Madison, using the DMCA to get website publishers not to reveal the names of its cheating customers is probably too much of a stretch to hold up in court, but that assumes there are publishers with the stamina to challenge the company’s claim, which will probably depend on how high-profile the names on that customer list are.

The DMCA became law in 1998 as part of an effort by Congress to deal with the problems of ripping, sharing, and other forms of intellectual property piracy on the Internet.

Intellectual property includes books and movies as well as inventions, logos, and confidential trade secrets and other tangible, creative expressions. Intellectual property represents billions of dollars in investment value. Roughly 80 percent of the value of the companies that make up the Standard and Poor’s 500 is derived from intellectual property.

The DMCA has two major components.

1. It makes it a crime to hack through IP security technology (a.k.a. encryption)

2. It grants special immunity to online service providers whose services could be used to facilitate copyright violations.

In order for online service providers to avoid legal trouble, they must not have actual knowledge of illegal downloading or sharing and they must not profit from the illegal behavior of others posting material to their servers.

What does it all mean? For starters, it means that it’s a crime to hack any kind of software or hardware designed to keep others from illegally copying music, movies, books, software, and tangible creative expressions, and it’s a crime to maintain a social networking service that encourages users to infringe on the IP of others.

In the case of the joke writer trying to protect her creative expression, “it can be hard to find the line between parallel thinking and insidious theft,” writes David Sims in The Atlantic, and since the social networks have no motivation to defy takedown requests, compliance is the path of least resistance.

So while social networks may be immune to being sued as long as they remove copyrighted material when asked, it’s important to note that users of online services like YouTube, Google Plus, Twitter, Facebook, Flickr and others — meaning people like you and me — are not protected in the same way.

If you upload copyrighted material to a YouTube account, Google, which owns the video streaming service, may be protected from getting sued. But you, as an individual, can still be a copyright infringer.

If you upload copyrighted material to your employer’s account, they’re responsible. And if you’re reproducing or distributing copyrighted material as part of your work duties, your employer is liable.

If, however, your employer has warned you and told you not to share copyrighted material on the company’s branded social media accounts, then you would be personally liable.

My company licenses a Social Media and Intellectual Property Certification Training program to make sure its employees are informed and that human resources can access personalized transcripts of those disclosures.

“Every time someone uses the DMCA in this way to try and silence a journalist or to take something down off the web you have to ask … is this mine, is it copyrighted, and is this an infringement. And too rarely nowadays does anyone ask any of those questions. They just say ‘I want it down’ and send a letter,” said copyright lawyer Brandon Butler (@bc_butler) in a recent discussion about the incident on TWiL.

On the other hand, if the leaked information is genuinely newsworthy and it’s in the public interest to know, journalists could publish the data under Fair Use Doctrine, one of the many exceptions to copyright protection.

“Jokes are things that people tell once they’ve heard them,” said Shel Holtz (@shelholtz) on FIR. “I don’t know how Twitter is going to be able to handle someone just sharing a joke that they heard.”

But since Twitter appears to have simply responded to this Take Down request as required by the DMCA, it’ll be interesting to see how Facebook handles similar requests to Instant Articles.  Journalists have already lost their rights on SoundCloud, which simply does not recognize Fair Use.

Brace yourself. Facebook and Twitter have become important news sources,  but if social networks simply comply with takedown requests without real news under Fair Use, services like Instagram Explore, YouTube Newswire and Twitter Lightning will fail to deliver on the public interest.

It will be interesting to see who has the last laugh.

Eric Schwartzman is a digital strategist who leads teams in the delivery of digital marketing initiatives. He is the strategist behind online social media training provider Comply Socially and online newsroom management service iPRSoftware. He is author of “Social Marketing to the Business Customer” and has extensive experience providing content marketing, lead generation, search and social optimization, and education technology services to senior leaders at multinational corporations, global nonprofits, the US Military, and federal government agencies. You can follow him @ericschwartzman.