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.)
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.
November 26, 2008
Implied license, yes, sounds plausible. But Twitter claimed "NO rights” (capitalization added). If we are to read that as one would a disclaimer under a commercial contract, wouldn’t we interpret that to be a rejection of all rights, whether express or implied?
November 26, 2008
Good point, but, I still think the hypothetical Twitter suit loses for the same reason Field loses. He's clearly trying to sandbag them; the course of conduct makes no sense unless the user has either badly misunderstood what Twitter does or is simply trying to trip them up. The court is going to be disposed to find a way to hold for Twitter, and either implied nonexclusive license or estoppel provides a comfortable route. (And were I sitting there interpreting the contract, I'd be willing to hold that "intellectual property rights" in this context refers to ownership, not license.)
November 26, 2008
Field v. Google is directly on point; the implied license and estoppel holdings seem like winners here for Twitter.
November 26, 2008
In regards to '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' I'd just like to point out that this is true for very few countries in the world (the US and Canada are the only two that immediately spring to mind).
November 27, 2008
James is right that this sounds a lot like Field. For the direct infringement question, it's the volitional acts doctrine issue. The volitional act which causes the display is coming from the individual posting it, not an affirmative act that Twitter is taking wrt a particular post. Field addressed this, I believe, as do other cases (Religious Tech v. Netcom, Playboy v. Hardenburgh and Playboy v. Webbworld, and I think one of the Perfect 10 cases dealt with this too).
November 27, 2008
As I recall, the volitional question arises in the recent Cablevision decision as well. That's a good way of looking at it, Colette. So one way we could look at it is that Twitter isn't even the one doing the displaying, but the user is.
November 28, 2008
And what about Section 512? Provided Twitter responds expeditiously to the user's own takedown notice, doesn't it have immunity?
November 28, 2008
Let me just say outright that this doesn't sound remotely plausible, let us take a look at the steps that would be required for a successful suit.
1) Someone would have to post a tweet that qualified for copyright protection. How easy this is depends on the perspective but lets say that someone experiments with a whole round of 140-character poetry.
2) Said Tweets are then registered with the USCO. They would have to be sue Twitter.
3) They would then have to file suit against Twitter, likely well out of state or even country.
4) They would have to aviod being laughed clean out of court for suing for infringement over something they themselves posted and knew the outcome of (going back to Field v. Google here). Section 512 guards against items OTHER members post so it would have to be their own submission. Even without the Field ruling, since they posted the work themselves, one could easily argue that they were responsible for the infringement, this is much more direct than Field.
5) They would then have to obtain damages greater than their expenses, meaning most likely that they would have to prove that Twitter was not an innocent infringer, something that would be almost impossible under these conditions.
Could it theoretically happen, yes. but it requires so many leaps in logic that it is almost impossible. Stranger things have happened, but not much.
Thank you for the food for thought though! Got my brain working again after Thanksgiving!
December 10, 2008
This is a non-starter; it's not even a close call. First, there is clearly an implied license here: no court is going to find infringement where you give Twitter something to post and it follows your instructions.
Second, to the extent you're relying on the statement from the ToS to "prove" that Twitter does not have a license to post your work, then the issue is really whether Twitter (by way of contract) has waived any implied license. I seriously doubt that the language from Twitter's contract would be construed as such a waiver. On it's face, it merely says that Twitter CLAIMS no rights over the intellectual property. That doesn't actually it doesn't "have" any rights. I would think that, at best, this language would be a prohibition against Twitter asserting any rights against you.
Moreover, a court would be unlikely to assume that Twitter meant to waive its implied rights to follow its customer's instructions or that this was what the parties intended in this contract. After all, POSTING content to Twitter is EXACTLY what the parties intend to happen.
I think that there are lots of closer calls than this one.
December 10, 2008
Just lost the whole comment I was writing.
Short form is… I agree it's a loser on implied license and possibly other doctrines (though I disagree about the volitional act one).
But the economics of it aren't as bad as the post seems to make out.
$35 to file, $200 minimum statutory damages per work. $200 filing fees.
If someone had $3500 and some time, they could easily create and register 100 140-character poems/stories. (See, e.g., Hemingway's famous 6-word story, and the Wired contest re same – http://is.gd/eXy )(In fact, 'Seven at the golden shovel' WITH title is less than 140 characters)
Then tweet those items, then sue. It puts about $16,000 into play, which isn't a bad payday for less than a day's work.
Which is why it's a good thing that the case is a dog.
–Ben