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.

4 thoughts on “Do Twitter’s new terms of service forsake third party developers?

  1. Ernie Svenson

    That's the problem with the Internet: it's too easy to copy and redistribute content. Twitter is doing its best to make things 'user-friendly.' But it can't solve the problem that you describe. No one can. What are you trying to suggest? That Twitter should say something more to the users to warn them of this (seemingly obvious) danger? That user should be aware themselves of this danger? I'm not sure what your point is exactly.

  2. Evan

    Ernie:

    Well that's just great. You confirmed what I feared all along, namely, that I don't actually have a point!

    All seriousness aside, it at least raises an issue that the developers should consider when building their service and drafting their ToS. Sounds to me like they shouldn't rely on Twitter to get clearance to use the content and sublicense it to them, but should make sure they get a separate license directly from the Twitter user. One that grants permission not contingent on the license to Twitter.

  3. William Carleton

    Evan, what you are saying is very interesting to me, because on my blog last night, I posted a piece which essentially surmises that the license grant a user gives to Twitter is in essence not something you can take back, not as to stuff you've posted prior to taking your account down (ie, everything!). But you're saying the case law says the license is revocable if an express term is not stated? I don't want to put words in your mouth or mis-understand your point.

  4. Jeremy Freeland

    Evan – Nice post. Bill Carleton and I have been discussing the new terms on his blog, so this is timely for us.

    I think that the failure to state a perpetual term is a mistake on Twitter's part. Having drafted similar TOS for other companies that rely on user generated content, I think anything else is impracticable – this isn't a land-grab on the site's part so much as a reflection of how these kinds of sites function.

    For example, if I retweet one of your posts on my stream, and Twitter displays it, how could Twitter track my re-post and stop displaying it when you terminate your account? Your reference to third parties raises similar issues.

    Further, if Twitter does syndicate content to other publishers, it's impractical for it to be able to have the publishers pull the content when the user terminates their Twitter account. It would be impossible to scale the necessary processes and, in any event, who'd want to buy content under those conditions?

    I think the fix for these issues is for the site provider to give users the opportunity to determine how broadly they are willing to have their content published, by attributing a hierarchy level to the content. See, e.g., flickr's copyright license and content privacy structure. With Twitter, this could be as simple as saying that, if your stream is limited to your permitted followers, then your content won't be displayed publicly, period, and that if your stream is not limited to your own followers, it's subject to a perpetual royalty-free license, with right to sub-license.

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