I had decided to sit this one out . . . but there sure has been a lot of name-calling, face-making and side-taking, so I thought I would try to clear the air a little bit by offering up my opinion on the matter.
While I am a lawyer, I am not your lawyer and this is an editorial commentary on newsworthy issues rather than legal advice. Remember that one too – unless you’re paying a lawyer, you aren’t really getting legal advice, and what you are getting on blogs, forums and, for that matter, Twitter is worth just what you paid for it. Seriously, remember that the next time you want to rely on someone’s advice on a forum. The judge won’t be too keen on a printout of a blog post when you hand it to him as “evidence.”
Ok, with that out of the way, let’s dig into this Twitastrophe. And, if you’ve made it this far, and don’t know what I mean when I say the word “Twitter,” feel free to skip this post altogether. ;-)
About a week ago, photographer/blogger/podcaster Scott Bourne posted an article about how sharing your photos on Twitter gave Twitter a license to use your photos however it sees fit. The photo-centric section of the Twitterverse did a lot of retweeting with some serious hysteria mixed in.
I read the article, read Twitter’s terms of service and decided that I didn’t necessarily agree with Scott’s take on Twitter’s terms. Of course, Scott’s article originates from the opinion of his attorney, so it was really his attorney’s take that I disagreed with. But that’s ok – attorneys have been known to disagree with each other on occasion. ;-)
On Twitter, you don’t really share “photos.” That is, you don’t upload photos to Twitter’s servers. And that’s kind of a big part of the definition of what gets licensed under Twitter’s terms of service.
I’m not going to re-hash the terms of service. You can see the relevant portions by looking on Scott’s post and on PetaPixel (linked below). Or, you could just read them yourself.
And in case you didn’t know, when you sign up for any service on the Internet, you are entering into a contract with that service.
Anyway, back to the drama . . . .
So, I emailed Scott my opinion on the matter – essentially, that you aren’t licensing photos that you link to on Twitter since it doesn’t fit within what’s licensed under the terms of service. I didn’t do this to rib him about it, just as a heads up as a point of clarification.
Scott emails me back and says that he’s not talking about photos linked to using Twitter, but rather that “Twitter is rolling out an embedded photo service and as it stands they will have a license.”
Fair enough. I wasn’t aware of that, but if we’re talking about a system where we’re uploading photos to Twitter’s servers, then, yeah, they’ve got a license to those photos as the terms of service are currently written.
This was a week ago, and after re-reading Scott’s article, I figured that worked as a word of caution – even if I would have presented it differently and even though I thought it was a little confusing.
Fast Forward a Week
Last night, PetaPixel published a post entitled Twitter Photo Rights Controversy is Much Ado About Nothing, which sets out several reasons why Scott Bourne’s original article is wrong.
This article was retweeted, more faces were made and names were called.
And let me pause for a moment to note that I have no ill-will toward Scott Bourne or Michael Zhang over at PetaPixel. I read both of their blogs, listen to Scott’s podcast and follow both guys on Twitter. So, none of this is directed personally toward either of them. I’m just trying to clear the air a bit, and hopefully, provide a helpful perspective to this discussion – as I see it anyway.
So, after I read the PetaPixel article, which I found well-presented, I revisited the whole thing about Twitter rolling out an embedded photo service. This is some news that I figured I had missed as a feature on the horizon somewhere, but I couldn’t find any news that Twitter was rolling out any kind of feature that allowed us to directly upload photos to Twitter’s servers and share via our Tweets.
Since I was running dry, I emailed Scott back and asked him for a link to the news. He replied that he didn’t have any links but it was part of the beta that Twitter is rolling out right now.
Scott tells me that he thinks Twitter is hosting the media, but I’m pretty sure that he’s talking about the YouTube, Flickr, Vimeo, TwitPic and other media that is embedded in the right sidebar when you click on a Tweet containing links to such media. (Someone drop me a line if they can point to a method to upload to Twitter that I have somehow missed.)
To be honest, I missed this new feature too. But if you’re on Twitter, go to your Twitter page in a browser (not using TweetDeck, Seismic, or some other program). Now, click on a Tweet that has a Flickr image or YouTube video link in it. If you are in the new beta preview, you should see that image or video embedded on the right side of the web page under the Twitter.com domain.
How Can Twitter Embed These Videos and Photos?
While I don’t see where Twitter has made agreements with these other media hosts available to the public, I suspect that there is a cross-license agreement between Twitter and those third-parties – as evidenced by a promo on the newtwitter intro page:
Now, it’s easy to see embedded photos and videos directly on Twitter, thanks to partnerships with DailyBooth, DeviantART, Etsy, Flickr, Justin.TV, Kickstarter, Kiva, Photozou, Plixi, Twitgoo, TwitPic, TwitVid, USTREAM, Vimeo, yfrog, and YouTube.
All those sites? User-generated content. Your content.
Check out the license agreements on each site. I’m pretty confident that plenty of lawyers billing Twitter and everyone else in 6-minute increments took a long, hard look at everyone’s terms of service before agreeing to allow Twitter to embed that content within the Twitter.com site.
That said, the license agreements within those sites, coupled with public APIs may be enough to cover Twitter’s embedding of the media. But, we’re speculating now.
Ok, So Am I Now Giving Twitter a License to My Photos?
First, let’s break down the black and white stuff.
A photo that I uploaded to Twitter’s server to use as an avatar or background?
Yes. Twitter clearly has a license under its terms of service to use that photo.
A photo that I link to in a Tweet that sits on my server (such as your own website or blog)?
No. That is clearly outside of the scope of what Twitter has a license to use under its terms of service.
A photo that I link to in a Tweet that sits on a third-party’s server for photo sharing, but doesn’t currently allow embedding?
No. Again, this is clearly outside of the scope of what Twitter takes under license via its current terms of service.
Now, the gray area . . .
What about the photos that are now capable of being embedded on Twitter’s site with these new “partner” media services?
I do not think that Twitter has a license to those photos based on Twitter’s current terms of services.
I think these images are outside the scope of what Twitter takes under the license within the terms of service. The person tweeting is still merely linking to a third-party site and not delivering a photo itself as part of the content shared on Twitter – even though Twitter goes out to the Internet and retrieves it.
Not So Fast . . .
Remember what I said in the introduction. It applies here too.
I think I’m right here. I think the law is on the photographer’s side in terms of the license to the photo.
That said, the correct interpretation of the law does not always prevail.
Because of the human element.
Even if you’ve followed me this far and you get where I’m coming from and where the other viewpoints are coming from, try explaining this to and elderly person who doesn’t understand how to “surf the web.”
There’s a good chance (technologically-speaking) that you’ll have to convince a judge who, at best, understands how to set the time on his or her VCR.
Technology is much faster than the law. There are a lot of smart tech lawyers out there whose biggest challenge is not crafting a winning argument because the law is on their side, but rather, crafting an argument in techno-dumb terms so that a judge will understand it. (Note, however, that there are a lot smart, tech-savvy judges out there who would get these issues. But, there is a big dice roll involved with landing one of those.)
If the lawyer with a legally-wrong argument can throw in an analogy about fishing to his case, and the judge gets it, he may win in spite of an inferior argument.
Justice, my friends, does not always prevail.
Explaining the intricacies of sharing photos on Twitter to someone who doesn’t understand the difference between an email address and a website’s URL is not a position I want to be in.
The Big Takeaway
I don’t think Twitter is stealing anyone’s photos.
I don’t think you’ll see anyone’s Flickr photo on a Twitter advertisement. (Even the #newtwitter intro video only uses a Flickr photo from the guy who made the video and a YouTube video from the @Twitter mothership to demonstrate the new features.)
I think the message that Scott Bourne delivered was warranted based on his attorney’s opinion. I don’t necessarily agree with that opinion, but I think there are some valid concerns about how we share our photos.
I think that PetaPixel’s rebuttal was on point with regard to the third-party links to photos.
However, I think we are living in a time where there is a slippery-slope in terms of the licensing of user-generated content (read: your photos).
Read those terms and conditions before you click “Sign Up.” If you are seriously concerned about how something affects you or your livelihood, pay an attorney for real, legal advice as it relates to you and your specific situation.
Moreover, I think that even if Twitter wanted to capture a license to those photos shared via third-party links, that it’s lawyers would strongly advise against making use of that license due to ownership concerns of the photos in those links. And, that reason probably makes more sense than just about anything else we’ve been rambling over.
Finally, even though a lawyer says something is a so (including yours truly), at least one lawyer is wrong in every case.