RS Prasad-Tharoor controversy: What are DMCA takedowns? Can Twitter be held for violating IT rules?

On Friday, Twitter yet again found itself embroiled in a controversy in India as it temporarily suspended Union Minister Ravi Shankar Prasad's account for violating Digital Millennium Copyright Act (DMCA). Although the account was soon restored, the agitated minister said Twitter violated India’s new IT rules.

Soon, senior Congress leader and Chairman of the Parliamentary Standing Committee, Shashi Tharoor's accounts also faced similar action. While Tharoor was more patient to explain the reasons behind his account suspension, he was clearly not impressed by the microblogging site's functioning in the country. "As Chairman of the Parliamentary Standing Committee on Information Technology, I can state that we will be seeking an explanation from @TwitterIndia for the locking of @rsprasad's & my accounts & the rules & procedures they follow while operating in India (sic)," Tharoor tweeted later.

The DMCA takedown requests were filed by the International Federation of the Phonographic Industry, on behalf of Sony Music Entertainment. In the case of Prasad, it was for use of A.R. Rahman’s song, Ma Tujhe Salaam, while in Tharoor’s case, it was for Rasputin.

With the two incidents, the Digital Millennium Copyright Act (DMCA) of the US government has got a new-found interest in India.

So, what's DMCA?

DMCA is one of the oldest laws protecting intellectual property and copyright belonging to a person or an organisation. Passed in 1998, the United States copyright law implements two 1996 treaties of the World Intellectual Property Organization. It criminalises production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works.

And Twitter being a US company adheres to the law.

"We can confirm that the Honourable Minister's account access was temporarily restricted due to a DMCA notice only, and the referenced Tweet has been withheld. Per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives," a Twitter India spokesperson said in a statement.

What's a DMCA takedown?

When content is removed from a website at the request of the owner of the content or the owner of the copyright of the content, it is known as a DMCA takedown. It is a well-established, accepted, internet standard followed by website owners and internet service providers.

According to dmca.com, the fact the content is yours, or in the case of a photo or video the subject is you, can be sufficient enough to request a takedown and for the content to be taken down.

Any owner of content has the right to process a takedown notice against a website owner and/or an online service provider (e.g. ISP, hosting company etc.) if the content owner's property is found online without their permission.

Twitter, in its copyright policies and practices, notes that any takedown request is in accordance to Section 512 of the DMCA that outlines the statutory requirements necessary for formally reporting copyright infringement, as well as providing instructions on how an affected party can appeal a removal by submitting a compliant counter-notice.

How does Twitter respond to DMCA requests?

Twitter’s response to copyright complaints may include the removal or restriction of access to allegedly infringing material. "If we remove or restrict access to user content in response to a copyright complaint, Twitter will make a good faith effort to contact the affected account holder with information concerning the removal or restriction of access, including a full copy of the complaint, along with instructions for filing a counter-notice," Twitter states on its website.

"If you’ve not yet received a copy of the copyright complaint regarding the content removed from your account, please respond to the support ticket we sent you," Twitter further adds.

Now, here is where Twitter has got into trouble with Ravi Shankar Prasad. The Union minister claims that he never received a prior notice, which he terms is in gross violation of Rule 4(8) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

Rising DMCA takedowns

There has been a rising number of DMCA takedowns from Twitter in the past few years, Twitter itself claims in its Jan-June 2020 report. Compared to the previous reporting period there was a 15 per cent increase in the number of takedown requests globally compared to its previous reporting period. The same report revealed a 4 per cent compliance rate with a whopping 737 per cent rise in global tweets withheld compared to the previous reporting period. Twitter reported 87 per cent increase in the accounts affected and 94 per cent rise in global media withheld on DMCA takedown requests.

The micro-blogging platform also added that it regularly shares the total number of DMCA takedown notices and counter-notices received by Twitter. The company reveals this data in its Twitter Transparency Report.

Does Twitter violate Indian IT rules?

While Twitter’s action was in accordance with industry practices, Prasad said that the company’s action was a violation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. Under this rule, Twitter India didn't provide Prasad with any prior notice before denying him access to his Twitter handle.

Prasad also added, "No matter what any platform does, they will have to abide by the new IT Rules fully and there shall be no compromise on that."

Prasad said his interviews on Twitter’s non-compliance with the new IT Rules have not gone down well with the platform.

“It is apparent that my statements calling out the high-handedness and arbitrary actions of Twitter, particularly sharing the clips of my interviews to TV channels and its powerful impact, have clearly ruffled feathers,” he said.

DMCA is a well-established and accepted standard followed by website owners and internet service providers. Hence, it is not yet clear if Twitter can be sued for withholding the account only on the basis of a notice not being served before the temporary suspension.

But Twitter could face a case of violations of Indian regulations while conforming to foreign rules. The case would get complicated as getting a notice from a UK-based organisation, citing Twitter 's role as a “service provider” under a US law, points to the challenges to the company’s operations in India. 

Tharoor's tweets offer a better insight into the issue. "So I won't blame @Twitter for this action or attribute the motives to them that @rsprasad does, though it wasn't pleasant finding my account locked. Clearly they had no choice but to honour a DMCA takedown notice, however stupid & pointless the request was... Locking is a foolish response to a DCMA notice; disabling the video (which they've now done) should be enough. @Twitter has a lot to learn,” he tweeted.