Tag: twitter

April 15, 2010 Copyright

How Twitter’s grant to the Library of Congress could be copyright-okay

Indigo Bunting - Audubon

Twitter is giving a copy of the archive of all tweets from the beginning of time to the Library of Congress. The inevitable outrage has ensued. One big concern is privacy. You gotta admit it’s creepy (and evokes Big Brother) to know that all your tweets will belong to the feds.

The other outrage-catalyst is copyright, and the possible violation of the license that one grants to Twitter via the terms of service.

Venkat and I exchanged some email earlier today on this topic. What if you delete your tweets? Doesn’t that terminate the license you gave to Twitter to store and share your content? How can the Library of Congress still keep its copy if the original license has ended? Fred Stutzman has also asked these kinds of questions.

These objections seem to presume that if one were to remove his or her tweets from Twitter, the license would be revoked, and any subsequent display by Twitter would be an infringement. I imagine that’s true in relation to Twitter, but I’m not so convinced when it comes to the Library of Congress. They’d likely fall under Section 108 of the Copyright Act.

Section 108 (17 USC 108) says that it’s not an infringement for a library to make a copy or distribute a work if (1) it’s not for commercial advantage, (2) the collections of the library are open to the public or available to all researchers in a particular field, and (3) the notice of copyright in the original work remains intact or if no notice can be found, there’s a legend stating that it may be protected under copyright.

You see what I’m saying? The Library of Congress would appear to have the right to archive one’s Twitter stream regardless of any assitance on Twitter’s part. In other words, by providing the archive, Twitter is just helping the LOC do something it’s entitled to do anyway.

What do you think?

September 11, 2009 Contracts, Copyright

Do Twitter’s new terms of service forsake third party developers?

Twitter announced its new Terms of Service yesterday. One big issue deals with copyright ownership. This is one of the perennial questions in the law of social media: “who owns the user-created content?” Twitter nods to this issue when it states that “Twitter is allowed to ‘use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute’ your tweets because that’s what we do. However, they are your tweets and they belong to you.”

That’s all well and good. And by not being too grabby, Twitter avoids stirring up a brouhaha like Facebook did earlier this year for a little while when it claimed a very broad license in users’ content. In that situation, some pointed out that Facebook could use your content forever, even after you deleted your account. No doubt Twitter was motivated by an aversion to controversy of this sort when it decided to not claim a perpetual license.

But is Twitter being too cautious? The license it claims in the new terms of service does not specify a duration. That’s user-friendly, because such a license is probably terminable at will by the user. Under cases like Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999), Twitter would no longer have the authority to use, copy, reproduce, etc. the tweets of a user that no longer permitted such use be made. Deleting one’s account would be a good indication that such a license was being revoked. And the user could follow up with an express statement to Twitter that the license no longer exists.

Still all well and good. But let’s look at the “ecosystem” that has been nourished by the Twitter API, and which Twitter bolsters in its new terms of service. (“We encourage and permit broad re-use of Content. The Twitter API exists to enable this.”)

Third party developers can build apps that, among other things, cache users’ Tweets and make them available for mashup, organization, etc. and redisplay. These acts by the third party developer are an exercise of rights of the copyright holder, i.e., the individual Twitter user. The terms of service allow Twitter to sublicense these rights to the third party developer, so there is no problem so long as the individual Twitter user is under the terms of service.

What happens, though, in the situation we were just discussing where the individual user revokes the license to Twitter? These cached copies out there in the possession of third party developers all of a sudden become unauthorized, because Twitter no longer has the sublicensable right to allow the tweets’ copying and redistribution by others.

In such a situation, are third party developers who continue to display the content left blowing in the wind, as infringers of erstwhile Twitter users’ copyright rights?

Notice sign photo courtesy Flickr user szlea under this Creative Commons license.

November 26, 2008 Copyright

Is Twitter a big fat copyright infringing turkey?

Here’s a topic you can mull over if conversation gets slow during tomorrow’s Thanksgiving dinner: Does Twitter infringe your copyright every time you post to it (i.e., put up a “tweet”)?

Consider this:

One of the exclusive rights of a copyright owner (under 17 U.S.C. 106) is the right to display the work. A website displays content when it serves up pages to the end user. Posts to Twitter — though they’re only 140 characters maximum — are arguably copyright protected works. (Set aside the question of retweeting.)

Is this a picture of Twitter?

Twitter’s Terms of Service, in an earnest effort to be generous and progressive, assure users that when it comes to copyright, “what’s yours is yours.” Elaborating on this point, the Terms of Service go on to say that “[Twitter] claim[s] no intellectual property rights over the material you provide to the Twitter service.” In so many words, Twitter is saying “thanks but no thanks” to any copyright rights it might otherwise have over user-submitted content.

But by displaying tweets, Twitter is exercising one of the exclusive rights of the copyright owner. To do this lawfully, it has to have permission. And this permission is an intellectual property right. But didn’t Twitter just tell us that it doesn’t want any such right? Yes. So it has no permission. Exercise of an exclusive copyright right without permission (fair use aside) is infringement.

So should we all go out and sue Twitter for infringement? Of course not. Twitter would have a number of good defenses, which I expect may get articulated in the comments to this post. Are you really going to pay the filing fee to the Copyright Office and register the copyright in each of your tweets? You’ll have to do that before you can even show up in court. And what about injunctive relief? A court order making Twitter take down your stuff would seem to defeat the whole purpose, at least a little bit.

Similar analysis from Venkat here.

Turkey photo courtesy Flickr user stevevoght via this Creative Commons license.

April 2, 2008 Trademarks

Blackberry and Twitter in a trademark tussle?

In April 2007, Twitter, Inc. filed application no. 77166246 to register the trademark TWITTER with the U.S. Patent and Trademark Office. (Twitter is the ever-more-popular tool that enables “friends, family, and co–workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: What are you doing?” It’s fun. You should try it if you’re not using it already. And you can start by following me.)

Anyway, in February the application reached the point where it was published for opposition. That means that any other trademark owner out there who feels it would be damaged by the TWITTER mark being registered can oppose the application in the Trademark Office.

On March 14, 2008, Research in Motion (of Blackberry fame) stepped up and requested an extention of time to oppose the TWITTER application. I ran a quick search for registered marks owned by Research in Motion (you can do that yourself here), but didn’t see anything close to “Twitter”. Can anyone think of an unregistered mark that RIM owns that is similar to TWITTER? Or any other reason why RIM would want to oppose this application? Comments are open, as they have been for some time.

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