Antifascist activists celebrated last week when a federal lawsuit was filed against Andy Ngo, a far-right Twitter star, by two video journalists who claim that Ngo violated copyright law by using video they shot during a protest in Portland, Oregon, in his own tweets.
The copyright infringement complaint focused on a pair of tweets Ngo posted on October 2, in which he embedded video shot the night before by Grace Morgan, a freelance photographer, and Melissa Lewis, an activist and videographer. Ngo’s tweets used both Morgan’s video of a bonfire set by protesters in the street and Lewis’s video of a tense face-off with the police in their entirety, but replaced the original captions with his own text.
Morgan and Lewis say they sued Ngo because he has used their copyrighted videos in this way dozens of times, even after they asked him to stop and blocked him on Twitter.
But Ngo appears to have taken advantage of a technical shortcut in the Twitter app that allows users to copy the source code for video clips embedded in other people’s tweets, and then paste that code into their own tweets. The result is that users like Ngo can send out tweets in which other people’s videos are embedded, but without the original captions, even from accounts that have blocked them.
The only sign that the video was taken from another account is a small line of type Twitter adds automatically, with the username of the original uploader and a link to their account.
For example, in July, Ngo used this technique to tweet video first uploaded to Twitter by the left-wing livestreamer Precious Child that showed a masked attacker clubbing a documentary filmmaker in the head during an anti-trans protest in Los Angeles. The attacker was quickly identified as a far-right activist named Aaron Simmons, but many people who saw the video framed by Ngo’s misleading caption wrongly blamed antifascists for the violence.
Research shared by antifascist activists shows that Ngo has posted more than 3,700 tweets that include video clips originally uploaded to Twitter by other users. Among those users are journalists and activists who are sympathetic to the protests against police brutality, racism, and far-right extremism they record. Many of them complain that Ngo regularly mischaracterizes their work by sharing their videos with false or misleading captions. Dozens of Ngo’s tweets include re-captioned video of protests in Portland shot by Morgan or Lewis.
As word of their lawsuit against Ngo spread, many of his supporters predicted that he would prevail in federal court based on the “fair use” doctrine, which can make it legal to use copyrighted material if the original work has been transformed into something new, often by adding reporting, commentary, or criticism.
However, comparing the text of the tweets Morgan and Lewis sent from the October 1 protest to the new captions Ngo wrote for their videos the next day, it is hard to discern any commentary. Ngo appears to have used the videos shot by Morgan and Lewis simply to report what happened at the protest to his followers, sounding more like a news anchor than a commentator.
Larry Zerner, a Los Angeles copyright lawyer who is the lead counsel for Morgan and Lewis, told me in a phone interview that what Ngo had done, by reporting on the October 1 protest using his clients’ video to illustrate his tweets, was no different than one television network illegally using a rival network’s video in a news report, without permission or payment. “ABC can’t just take NBC’s video and say, ‘This is the news,’” Zerner said.
For Morgan and Lewis, Zerner said, the harm inflicted by Ngo’s use of their footage to report on this protest and others in Portland for his 940,000 followers is not simply about the decreased value their videos might have for news outlets they sell images to; it is also about the abuse they suffer from Ngo’s rabid, far-right fans when he draws attention to them as left-wing journalists. “The really important thing,” Zerner told me, “is the negative consequences. They get harassed when he does this.”
Both women say that they have been inundated with harassing comments from Ngo’s followers online when they objected to his use of their work, and suspect that abuse they have been subjected to offline is related to his description of them as “antifa videographers.” Morgan told me via email that while reporting she has “been recognized and targeted by far right extremist groups, primarily the Proud Boys.”
“I’ve been maced and shot at with frozen paintball guns, issued death and rape threats, generally prevented from doing my job as a photojournalist, and also harassed at my place of work during the day,” she added. “My family members have been threatened in other states. All of these things intensify and flare up in direct correlation to Andy featuring me on his page.”
Lewis told the Daily Beast that shortly after Ngo tweeted the information that she suffers from photosensitive epilepsy, she was chased down at a protest by people who exposed her to strobe lights until she had a seizure — an incident she reported at the time.
“He profits off the blood, sweat, and tears of others,” Lewis tweeted about Ngo on Friday, “twists the narrative to instill fear and rage in his audience, and damns the people featured on his timeline/website to increased danger.”
In their initial comments on the suit, both Ngo and his lawyer, Harmeet K. Dhillon, misrepresented the complaint by claiming that Ngo was being sued for merely retweeting or quote-tweeting Morgan and Lewis.
The Antifa loons and their lawyers are at it again — this time filing a frivolous copyright lawsuit alleging — unlawfully retweeting?!
They attack Andy because he does the hard work other journalists fear. Will you please support his freedom to quote-retweet, here! ?????? https://t.co/Aed4RSONeJ
— Harmeet K. Dhillon (@pnjaban) December 10, 2021
Dhillon also urged Ngo’s supporters to donate to a legal defense fund set up by the Center for American Liberty, a nonprofit founded by her, using the URL “libertycenter.org/retweet” and the slogan “Make retweets great again!”
But no matter how many times Ngo and Dhillon use the word “retweet,” that is not, in fact, what Ngo did. Because he was blocked by both Morgan and Lewis, it was impossible for Ngo to either retweet them, which is to share the exact tweets they posted on his timeline, or quote tweet them, which is a form of tweeting that includes the full text and media of another tweet and space to comment on it. What Ngo did instead was to create new tweets on his account using the source code for the videos shot by Morgan and Lewis.
Ngo, who is originally from Portland, has earned a huge social media following, a book deal, and regular appearances on Fox News and at congressional hearings by wildly exaggerating the supposed threat posed to American democracy by the antifascist movement he first encountered in his hometown. (Some of Ngo’s reporting on antifascists in other cities has recently been proven flat wrong. Earlier this month, after the FBI concluded that the gunman who carried out a mass shooting in Dayton, Ohio, in 2019 was not motivated by antifascism, as Ngo had claimed, he responded to my own discovery of factual errors in his reporting on that incident by blocking me and making more false claims.)
Because many Portland antifascists consider Ngo’s reporting on their anti-police protests and aggressive efforts to disrupt gatherings of far-right extremists as deceptive or misleading, he has been harassed and assaulted on at least two occasions while covering protests. Dhillon is also representing Ngo in a lawsuit he has filed against a number of Portland antifascists and the group Rose City Antifa over the first of those assaults, in 2019.
Ngo mentioned those assaults in his tweeted response to the lawsuit, in which he also described Morgan and Lewis as “antifa videographers,” and asked for donations to his legal defense fund.
The foundation’s donation page inaccurately says that Morgan and Lewis “bizarrely claim that Andy violated copyright laws for retweeting their videos — while still tagging and crediting them for their videos.” In fact, Ngo did not tag or credit Morgan and Lewis; their usernames and links to their profiles were added automatically by Twitter when he copied the source code for their videos from their tweets into his.
In a statement on that donation page, Dhillon argues that because Ngo did not download the videos uploaded by Morgan and Lewis, he could not have violated the legal ban on copying their work. “The plaintiffs shared their videos publicly on Twitter, a platform designed for exactly that purpose, and Mr. Ngo commented on this publicly posted content using Twitter platform tools, not somehow surreptitiously downloading and uploading the clips as the plaintiffs falsely claim,” Dhillon wrote.
But the fact that Twitter now offers users a way to copy the source code for videos or photographs uploaded by their creators, then paste that code into their own tweets so that the original media shows up in their own messages means that it is no longer necessary to download images from one Twitter account to display them on another. The copyright infringement complaint filed by Zerner takes note of that by accusing Ngo not of downloading the clips, but of finding a way “to obtain the raw video URL from Plaintiffs’ posted videos, then deliberately copying the video URL from Plaintiffs’ videos into his own tweets.”
Zerner clarified in an interview with me that the technical way in which Ngo obtained exact copies of his clients’s videos is not relevant since Morgan and Lewis retain the “exclusive right under copyright law to reproduce the videos and to publicly display the videos.” Ngo infringed those rights, Zerner said, by displaying their copyrighted clips in his tweets. The fact that Twitter makes it easy to do that does not grant Ngo a legal right to ignore the copyright Morgan and Lewis hold.
Ngo’s apparent belief that there is nothing wrong with using Twitter’s tools to copy the source code for a piece of media from another user’s tweet into your own is also strange because he recently filed multiple copyright complaints of his own in which he asked Twitter to take down tweets by his critics that could have been created this way.
In October, Ngo posted a photograph of himself posing in front of graffiti in Warsaw, during a trip to Poland. In Ngo’s original caption, he mistakenly identified the words and symbols scrawled on the wall behind him as simply, “Antifa graffiti and their ‘Iron Front’ logo in the old town of Warsaw.”
Antifa graffiti and their “Iron Front” logo in the old town of Warsaw, Poland. pic.twitter.com/bmssZSy03Y
— Andy Ngô ???? (@MrAndyNgo) October 10, 2021
But an antifascist researcher in Los Angeles, Chad Loder — who reviewed another copy of the photograph posted on Twitter by a Polish blogger who was with Ngo in Warsaw — noticed something that Ngo had missed: that the graffiti in fact showed that the word “ANTIFA” had been crossed out and the word “FALANGA” had been written over part of it. The Falanga — the stylized outline of a hand holding a sword — is the symbol of Poland’s far-right National Radical Camp, the modern incarnation of an antisemitic fascist group from the 1930s that Poland’s Supreme Court defines as “fascist.”
The photograph also appeared to show that someone wielding black spray paint had altered the original graffiti to transform the three downward pointing arrows of the antifascist logo into a version of the Falanga symbol.
After Loder tweeted the image twice, along with comments explaining that Ngo had posed in front of graffiti supporting a group whose members hold antisemitic views, Ngo filed a complaint to Twitter, asking that Loder’s tweet be removed as a supposed violation of the Digital Millennium Copyright Act, or DMCA.
Twitter initially responded by removing the tweet and then closed down Loder’s account. “My account was suspended, and they were saying this is permanent,” Loder told me.
In that case, Twitter reversed its decision three days later, following an appeal filed by the Electronic Frontier Foundation on Loder’s behalf.
Morgan told me that before she and Lewis filed their lawsuit, they had also appealed to Twitter to take down a number of Ngo’s tweets using their videos as DMCA violations. “The majority of the D.M.C.A. claims that both of us have filed against him have not been recognized by Twitter, which has been very frustrating,” Morgan wrote in an email. “Every other independent journalist in the Portland community has also filed D.M.C.A.s against him, all with varying degrees of success.”
A list of successful copyright complaints against Ngo shared by antifascist activists shows that dozens of Ngo’s tweets have been taken down by Twitter because they contained copyrighted video or images. Morgan told me that she was puzzled as to why Ngo’s account was not suspended for these violations of the rules, as so many others have been. “It’s been a bit mysterious to us though why he is never penalized for these infringements, beyond the content simply being taken down,” Morgan said.
Morgan also confirmed that the lawsuit against Ngo was filed in the Mark O. Hatfield federal courthouse in Portland, which was the scene of nightly Black Lives Matter protests throughout much of 2020. The October 1 protest Morgan and Lewis filmed took place on the streets outside the courthouse, and around the neighboring Multnomah County Justice Center.
Updated: Dec. 12, 2021
This article has been updated to clarify that Chad Loder did not use source code for the photograph of Andy Ngo taken from Ngo’s tweet in Warsaw to post that image on Twitter with a commentary. An additional comment from Larry Zerner was also added to better explain that the lawsuit filed on behalf of his clients contends that Ngo violated their exclusive rights to publicly display their videos.
Update: Jan. 4, 2021
In late December, the federal lawsuit against Andy Ngo was dismissed at the request of Larry Zerner, the lead counsel for Grace Morgan and Melissa Lewis. Morgan declined an interview request to discuss the reason for dropping the case. Zerner also declined to explain in any detail what had changed, writing in an email: “Based on additional facts we became aware of, we decided not to pursue the lawsuit at this time.”
Writing on Twitter, Lewis refused to go into details, but described the decision to drop the suit as one made by her lawyer. “I was approached by an attorney that really looked like he knew what he was doing. As an anarchist, I have never pursued a copyright in my life,” Lewis wrote on Dec. 25. “I feel both embarrassed and responsible, and also like someone with a LOT more knowledge took me and (more importantly) our COMMUNITY for a ride. Shakespeare was right about lawyers.”