Elon Musk’s X files motion to dismiss music publishers’ $250m+ copyright lawsuit; NMPA says platform has ‘consistently failed’ to stop ‘rampant piracy’ on its platform

Unlike rivals like Facebook, Instagram and TikTok, X – the Elon Musk-owned social media service formerly known as Twitter – does not have licensing deals in place with major music companies.

The platform’s lack of agreements with music rightsholders has long been a matter of contention, and the platform is often criticized in the music industry for turning a blind eye to alleged infringement.

This all came to a head in June when the platform was hit with a multi-million-dollar lawsuit from prominent independent music publishers, as well as Sony Music Publishing, Universal Music Publishing Group and Warner Chappell Music.

The suit, which names Musk’s X Corp as the sole defendant, alleges “rampant infringement of copyrighted music” on the platform, and seeks over $250 million in damages for “hundreds of thousands” of alleged infringements of approximately 1,700 works.

Music publishers argued in the complaint that “Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law”.

The suit added: “While numerous Twitter competitors respect the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement that harms music creators.”

Now, two months on from the launch of that litigation, Twitter / X has filed a motion asking the court to dismiss the complaint “in its entirety”.

David Israelite, CEO of the National Music Publishers’ Association (NMPA), which represents the interests of major and independent publishers in the US, said in a statement on Tuesday (August 15) that “X’s response is par for the course – another attempt to deny the fact that they have consistently failed to stop or even slow the rampant piracy on their platform”.

Added Israelite: “Music is streamed and consumed by countless people on X. The service owes songwriters and publishers millions of dollars in compensation as well as a commitment to fully license music, consistent with all other major social media platforms and the law.”

“X’s response is par for the course – another attempt to deny the fact that they have consistently failed to stop or even slow the rampant piracy on their platform”.

David Israelite, NMPA

In the motion, filed in a Tennessee court on Monday, along with an accompanying Memorandum explaining the reasoning behind the motion, lawyers on behalf of X /Twitter argue that all three counts within the complaint, including “that X is directly, contributorily, and vicariously liable for alleged copyright infringement arising from user posts”, should be dismissed “for failure to state a claim”.

According to X / Twitter, music publishers “fail to adequately allege direct infringement because the Complaint does not contend that X acted with the requisite “volitional” conduct”.

It adds: “The law requires that direct infringement arise from active, knowing, non-automated conduct by a defendant — not from the passive, automated operations of a website.  The Complaint contains no allegations of active, intentional conduct by X, or any X employee, related to the allegedly infringing user posts—an omission that is fatal to the claim.”

X claims that the ‘contributory infringement’ claim is “similarly defective”.

The Memorandum, also obtained by MBW, continues: “The United States Supreme Court has held that where a company offers a product or service that has substantial non-infringing uses — as X’s service indisputably does—the copyright plaintiff must allege that the defendant took active steps with the intent of encouraging infringement.

“In this case, Plaintiffs do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works.

“To the contrary, X’s anti-infringement policies and practices, including its DMCA policy, belie any reasonable assumption that X has induced its users to infringe any copyrights. Even reading the Complaint in the light most favorable to the Plaintiffs, no liability can be established on the facts as pleaded. As this Court appropriately recognized in a case with similar.”

Music publishers’ claim ‘for vicarious liability’, according to X / Twitter’s filing, “fails as a matter of law because Plaintiffs do not allege that the ability to post infringing content to the X platform (in violation of the Terms of Service) is a draw to users sufficient to confer an ‘obvious and direct’ financial benefit to X, or that X had the practical ability to supervise the alleged infringement.

It adds: “As such, the vicarious liability claim is also insufficiently pleaded and should be dismissed.”

In February last year, global recorded music body IFPI branded Twitter as “a significant concern to the music industry”.

“Twitter stores and gives the public access to a large amount of copyright-protected content and is a major platform for distributing infringing music content, both audio and video,” the IFPI said in its submission to the EU Counterfeit and Piracy Watchlist Consultation at the time.

In 2021, a bipartisan group of over US lawmakers sent a letter to then-CEO of Twitter, Jack Dorsey, demanding the social media platform address its lack of music licenses.

In December 2020, the RIAA suggested during a Senate Judiciary Subcommittee on Intellectual Property hearing that infringement on Twitter equates to “piracy on an industrial massive scale”.

Twitter reportedly considered licensing music rights from the three major record companies prior to Elon Musk’s takeover, but, according to a report from The New York Times in March, those talks “stalled” after Musk acquired the platform.

According to the legal complaint filed by music publishers in June, which you can read in full here,  Twitter, which was purchased by Elon Musk for $44 billion last year, “is rife with copyright infringement”.

The complaint added that “both before and after the sale, Twitter has engaged in, knowingly facilitated, and profited from copyright infringement, at the expense of music creators, to whom Twitter pays nothing”.

It continued: “Twitter’s change in ownership in October 2022 has not led to improvements in how it acts with respect to copyright. On the contrary, Twitter’s internal affairs regarding matters pertinent to this case are in disarray”.Music Business Worldwide