November 09, 2010
Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to "Twitter/TwitPic"
[Post by Venkat]
Twitter recently issued new guidelines regarding use of the "Twitter" and "Tweet" marks, and use of the underlying tweets by users and third parties as well: "Guidelines for Use of the Twitter Trademark." The guidelines prompted some criticism that Twitter was over-reaching and that it was putting the squeeze on the vibrant ecosystem which helped it grow in the first place. (See "Twitter Investor Defends New ‘Tweet’ Usage Rules," for a discussion of some reactions and responses from an investor in Twitter.) Before talking about the trademark-related issues, I thought it was worth discussing a copyright/licensing issue that was lurking around.
Twitter's guidelines contain its views on whether and when you can reproduce someone else's Tweets. This was largely thought to be an issue that would not come up in practice, but a case currently pending in the Southern District of New York (Agence France-Presse v. Morel) actually turns on the issue of whether sharing content through the Twitter ecosystem results in some sort of broad license to third parties.
Agence France-Presse was accused by a photographer of downloading photos (of the Haiti earthquake aftermath) from a TwitPic account and then licensing those photos to third parties. I thought the case would quickly settle, but it's still ongoing. Surprisingly (almost shockingly), AFP is continuing to take the position that uploading photos to "Twitter/TwitPic" results in some sort of implied license for the world to use whatever content is uploaded. As AFP argued in its briefs in support of its motion to dismiss:
When [plaintiff] signed up for his Twitter/TwitPic account and posted his photographs on Twitter/TwitPic, he expressly agreed to the Terms of Service established by Twitter and TwitPic, and he therefore granted Twitter, TwitPic and third parties, including AFP, a "worldwide, non-exclusive, royalty-free license … to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute" his photographs, and he is "responsible for [his] use of the Services … and for any consequences thereof, including the use of [his] Content by other users...."
I think AFP is unlikely to prevail on its motion for a variety of reasons, but Twitter's guidelines make clear that AFP's interpretation of the Twitter terms of service is off-base, to say the least. Twitter's terms contain language making clear that "you own your Tweets." Moreover, as the guidelines note, users should not:
[p]rint Tweets without permission from the author; [or]
[u]se screenshots of other people's profiles or Tweets without their permission.
Twitter did not even bother addressing the underlying content (other than Tweets) uploaded into its ecosystem, most likely because the argument is pretty far-fetched that sharing content through Twitter somehow results in a license for someone to download the content and then use it elsewhere - i.e., no one would reasonably think that content shared within the Twitter ecosystem is fair game, particularly for use outside the Twitter ecosystem. [Also, see my clarification below. The content is not uploaded to Twitter's servers, so Twitter understandably doesn't have to say anything about this content.]
There's one set of issues that Twitter could probably clarify here. Twitter makes available functionality that allows websites to "embed" Tweets. Admittedly, Twitter users who have their timelines set to "public" are looking for broad distribution of their Tweets. I would think that Twitter would be fine with users or third parties (1) either reproducing the text of Tweets within the Twitter ecosystem, or elsewhere in a fair use context, or (2) using the "Blackbird Pie" feature that Twitter made available. (Obviously, users should be free to also use Twitter's "Retweet Button," although there is nothing in the guidelines about this.) At the end of the day, there is a braod spectrum between (1) using someone's Tweets in the ecosystem, or outside of it in an isolated instance to make a point, and (2) downloading content and using it elsewhere, or using a collection of Tweets without permission. I would think there is no dispute that the latter is not encompassed by Twitter's terms of service, but there's a fair amount of grey area in between.
Finally, Twitter's gift to the Library of Congress which plans on archiving all public Tweets has generated some discussion in the past as well. Twitter has a broad license to utilize the Tweets sent by users, but from what I understand, Twitter is allowing users to opt-out of this archiving by deleting their Tweets (and implementing a lag between when a tweet is sent and when it is ready for archiving). Fred Stutzman has a post that raises the issue of whether this should have been opt-in: "Twitter and the Library of Congress." Some of this seems like splitting hairs to me, since all your public tweets are contained in that big old archive in the sky - i.e., Google. Twitter also makes clear that if you set your profile to public, your Tweets are going to end up out there, for the whole world to see. Still, this poses an interesting question and one that Twitter may want to consider clarifying its stance on.
Branding & Trademark Usage Issues: The branding-related changes or restrictions were largely predictable:
you can't use the Twitter marks in a way that imply sponsorship;
you must use current versions of the logos;
you can't use Twitter in the name of your application.
One that was interesting is that Twitter seemed to give somewhat on use of the word "Tweet," by allowing use of this term in the names of applications. However, you can only include "Tweet" in the name of your application to the extent that the application "is designed to be used exclusively with the Twitter platform." As Oliver Chiang's article (linked above) notes, this still affects applications such as TweetDeck, which has "Facebook" integration. (TweetDeck's bird icon probably doesn't comply with Twitter's usage rules either.) Twitter has long had an ambivalent stance on the use of "Tweet" by developers, as noted by Robin Wauters in this February 2010 TechCrunch article: "Twitter Fences With Its “Tweet” Trademark Again."
At the end of the day, this seems like an example of the tension inherent in fostering a vibrant developer community, and the concern's of a platform company's trademark lawyers. Some of Twitter's guidance also seemed directed at average users, perhaps in an attempt to prevent potential genericide of the Tweet mark. (See "Will Twitter trademark 'tweet' before it’s genericized?") Does this represent a shift in what was perceived as Twitter's laissez faire attitude toward Twitter-based marks? (See these April 2009 posts from Tom O'Toole ("Why Not Follow Twitter's Example on Trademark Enforcement?") and Mike Masnick ("Lesson For Companies Being Over-Aggressive In Trademark Protection: Look At Twitter") on Twitter's laissez faire approach.)
Finally, thanks to Professor Goldman, Twitter's General Counsel (Alexander Macgillivray) gave a talk at Santa Clara about Twitter and the variety of legal issues that it has to deal with. You can check out his very interesting and informative talk here: "Twitter: An Insider's View."
AFP v. Morel Briefs:
"Twitter Investor Defends New ‘Tweet’ Usage Rules" (Oliver Chiang/Forbes)
"Hey, Twitter, Enough Of This Crap About 'Here's How You Can Use The Word Tweet'" (Henry Blodget/Business Insider)
"Twitter Updates Logos, Rules: Info On Logo Use, Screenshots, And Capital “T” Tweets" (MG Siegler/TechCrunch)
For a humorous take on all this, check out this post: "How The Twitter “Man” Is Trying To Keep the Viral Buzz-Marketer Down" (A Bajillion Hits)
Added: Thanks to Bakari Brock for flagging something: content is not "uploaded to Twitter." The underlying content (videos, pictures, etc.) is uploaded to third party services or servers. (This is part of the beauty of Twitter's architecture, and one that offers it legal benefits as well. At the end of the day, it's a service that allows for the exchange of short text-based messages, and links.) I've tweaked the post and title to reflect this.