Did Twitter have the right to ban the "Mad Men 9"? Should Peggy sue?

So you may have heard that under pressure from AMC's legal team, Twitter, the microblogging service that's exploded onto the scene, took down the accounts of nine users who had begun posting messages in the voices of characters of "Mad Men." And if you were like me, you may have asked yourself some questions:

1. How can Don Draper tweet if it's 1962 and the internet hasn't even been invented?

2. Is AMC just bored with all the good publicity it's gotten lately and wants to try some really bad publicity for a change?

3. Does the network have a case against the "Mad Men 9"? Should Twitter have caved in to them?

I don't know about 1 and 2, but as for the last two questions the answers are no and hell no, as two leading intellectual property experts confirmed for me this afternoon. The good news is that after I posted this story, I got word that AMC had called off the dogs. But the whole hullabaloo raises questions of intellectual ownership that are useful to raise every time a new technology comes along.

First, a catchup for the tweetless. Twitter is a special blogging service that only lets you post the length of a standard cell phone text message -- 140 characters -- at a time. Of course, you can post multiple times, and you don't have to be on a cell phone to "tweet," as they say. I use a utility called Twitterrific that makes it easy to follow lots of other Twitter users' tweets. The result is an interesting train of links, quick thoughts and observations, which scroll by innocuously in a sidebar on the right edge of my computer screen. It's not unlike blogging itself, except that economy renders an entirely different mode of expression than ordinary blogs that I find very appealing. (Local writer Kelly Sue DeConnick's tweetlog is a great example of this.)

As Clay Shirky noted in his book Here Comes Everybody, users of Twitter almost immediately put it to uses that its co-creators (including Evan Williams, who also created Blogger), couldn't have foreseen -- like the Egyptian blogger who tweeted a running chronicle of his and his wife's arrest in Cairo.

Anyway, someone came up with the idea of creating a Twitter account as a character on "Mad Men," the stylish retro-drama set in the early '60s. "Mad Men" is to New Yorkers over 30 what "Gossip Girl" is to New Yorkers under 30. Nine characters in all eventually began tweeting, writing in the voices of their counterparts on the show. There was a knowingness to most of the posts of being consumed by a 21st-century audience (of course, it's that same conversation between "Mad Men's" writers and its audience that gives the show much of its entertainment value).

For instance, here were some recent tweets from the Mad Men 9:

Eager to get the information from research about Maidenform. I want to help women know about all the options in today's undergarments. (peggyolson)

Heading home. Going to have Sally make me an Old Fashioned or two and then try to get some better sleep tonight. (don_draper)

I'm not sure I'm following these kids with their "young ideas" but Duck says we need them to get new accounts. So here's to young ideas... (Roger_Sterling)

Pretty harmless and, let's face it, not surprising given the small but dedicated cult of "Mad Men" enthusiasts rising up around the country. Needless to say, this was PR that AMC could not buy if it wanted to.

Except AMC's legal department didn't see it that way. So, armed with the official-sounding Digital Millennium Copyright Act, it approached Twitter and demanded the accounts be suspended. Since all tweets are handled through the Twitter.com website -- indeed, this centralization gives the service its appealing simplicity -- management was able to identify and shut down the offending accounts faster than Roger Sterling could knock down a midday martini.

Before we go any further, just so you know, I'm a fan:

Previously on TV Barn: "Mad Men" - it's brilliant by design

But I am not a fan of this move by AMC's legal eagles. In fact, it strikes me as a classic case of using new-media law to clobber existing old-media law. But just to be sure, I checked in with Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at American University. He was one of the experts I consulted when writing my story on mashups ...

Also previously on TV Barn: Mashups and mixers need not cease and desist

Jaszi hasn't used Twitter, though he's aware of it. But he is a fan of "Mad Men" and when I read to him the tweets above, especially the ones from Peggy and Roger which expound on Season 2 plot points, he got it.

He began by clarifying for me that the DMCA is the mechanism being used to take down the tweets of the Mad Men 9. It's not a basis for claiming copyright violation. To do that, we turn to old-fashioned copyright law, and that's where we find AMC on shaky legal ground.

"Here are a few things that are axiomatic," said Jaszi. "In general, character names are not protected by copyright. Another (axiom) is that short phrases like "here's to young ideas" are generally not protected by copyright. And the third is that -- and this is a very basic copyright proposition -- copyright protection attaches to the working-out of ideas and not the ideas, the plot premises, themselves.

"So, the idea that Peggy Olson is working on the Maidenform account is something that in general, copyright analysis would fall on the unprotected idea side of the idea expression dichotomy. If there were 140 characters of quoted dialogue (in the tweet), it would be a tougher call, because the dialogue is the working-out of the premise. The dialogue is protected, the premise is generally not protected.

"It's funny," said Jaszi, "but I just came from teaching my first copyright class of the semester, and I always begin it by telling my students, 'Just because a work is protected doesn't mean everything in it is protected.'"

His tentative conclusion? "Taking those three examples, it's difficult to see what has been taken here to which copyright protection would attach."

That's his take. I would add this: Tweeting in the voice of a fictitious character is fan fiction by another name. And that practice is perfectly acceptable under the law. Another contributor to the Fair Use document, Georgetown Law professor (and fanfic expert) Rebecca Tushnet, wrote in reply to my email asking her opinion:

I agree that roleplaying the characters, just for the fun of it, is extremely likely to be fair use, even assuming that the tweets, taken as a whole, copy some copyrightable aspect of the show--which is far from a foregone conclusion. There's a recent case from California that holds that a copyright owner needs to consider fair use before sending a DMCA notice. (There are also some interesting-to-law-professors questions about how the DMCA ought to apply to Twitter, since what Twitter does wasn't anticipated by the DMCA, though the tweets hosted on the web are clearly within the scope of the DMCA notice-and-takedown scheme.)

Fortunately, one of the "Mad Men 9" has decided she's not going to let a little DMCA mumbo-jumbo stand in her way. And fittingly, it is the plucky career gal, Peggy Olson. After @peggyolson was taken down, she started tweeting under the name peggy_olson. A few hours ago she posted this:

Pleased to discover it's not hard to make friends in advertising after all. But the guys in legal are humorless, and frankly not too bright.

You go, girl! But what if Peggy really had a pair? And I don't mean boobs. Could she sue Twitter for caving in to AMC's pointless, clueless, tone-deaf and mean-spirited legal action? I posed the question to Jaszi.

"You know, there is actually a little known provision in the DMCA that gives a person whose been subject to a takedown the ability to demand a putback," said Jaszi. "Let me see if I can find it...."

In a few moments he had pointed me to section 512(g) of the DMCA code, the takedown mechanism, which helps protect service providers against lawsuits.

First, 512(g)(1), as interpreted by Jaszi: "Not only can a service provider avoid liability to a copyright holder by taking down something in response to notices, but they can't be liable to their customers, either, for having done so. BUT, then (g)(2) says if the person whose material has been taken down files a counter notice with the service provider ... then the copyright owner has a certain amount of time -- about two weeks -- to file a lawsuit against the person who made the original post. And if they don't, then the service provider can put the material back up without running any risk of liability.

"It's a real Rube Goldberg procedure and sufficiently complicated that few people have taken advantage of it," said Jaszi. "But it does exist. It is part of the law and in my opinion, at least, more people who suffer the consequences of these overcautious takedowns should be taking advantage of this. The copyright owner has to put up or shut up. The problem is the person who does this is basically asking for trouble. So you have to be pretty confident of your position to take advantage of this."

Well, what'll it be, boys? Will you retreat to your cubicles and your humdrum existences, and never tweet under a fictional identity again? Or will you realize that there is a new breeze blowing out there, and that The Man can't just order you around anymore?

P.S. Just as we were going to press, AMC relented. You don't need a weatherman to know which way the wind blows!

Comments

[Marina Martin]

Laconi.ca is a new, open source, federated microblogging tool - like Twitter without the silo. A federated system means that you could install your own microblogging system at KansasCity.com, and seamlessly subscribe to users on other systems. Heck, there could be a system specifically for Mad Men enthusiasts.

Stories like this make it even clearer to me why we need federated microblogging.

[Peter]

The Twitter users' remedies might well include one against AMC for sending the takedown notices in the first place. In Lenz v. Universal (involving Universal sending a takedown notice to YouTube for a 24 second video of a toddler dancing to "Let's Go Crazy" by Prince, the judge recently ruled that Ms. Lenz, who had posted the video, stated a claim against Universal for failing in good faith to consider the obvious fact her use of the song was fair use. The judge wrote:

[I]n order for a copyright owner to proceed under the DMCA with “a good faith
belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

It seems pretty obvious to me AMC didn't consider whether the Twitterers were engaging in fair use before sending out the takedown notice.

The decision in Universal v. Lenz is here:

http://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf