Photographer prevails in copyright dispute regarding ownership of content posted on Twitter

Earlier this month, a New York District Judge rendered a summary judgment in Agence France-Presse (AFP) v Daniel Morel, finding that both AFP and The Washington Post infringed Morel’s copyright by using photos Morel posted on Twitter without his permission.  The images under dispute were taken by Morel in the aftermath of the Haiti earthquake.  Within minutes after Morel uploaded the images to Twitter, Lisandro Suero copied and tweeted them claiming that he was the exclusive copyright owner.  AFP acquired the images from Suero and licensed them to Getty Images.  The photos were widely distributed through various news outlets including The Washington Post.  When alerted of the copyright violation by Morel’s counsel, AFP sought a declaration that it did not infringe Morel’s copyright.   Morel responded with a counter-suit alleging that the news outlets violated his copyright.

What is interesting about this case is that both AFP and Morel relied on Twitter’s terms of service to substantiate their positions.  In the case of AFP, it argued that Twitter’s terms operated as a license granting AFP (as a Twitter user) the right to use content uploaded by other users.  This argument relies on a portion of Twitter’s terms which states that Twitter “encourage[s] and permit[s] broad re-use of content.”  Morel also appealed to Twitter’s terms to argue that he retained copyright in his images.  The relevant provision states: “You retain your rights to any Content you submit, post or display on or through the Services.”  The Judge sided with Morel, finding that Twitter’s terms of service do not “clearly confer a right on other users to re-use copyrighted postings.”  The only license to user content is granted in favor of Twitter and its partners.

The debate over ownership in content uploaded to social media sites has similarities with the early infringement lawsuits involving open source software.  In the open source context, infringing parties similarly argued that once content was made available under open source licenses, it was effectively ceded to the public domain.  In those early cases, courts had to clarify that making software available under an open source license does not amount to a waiver of exclusive copyright.  Just as Jacobsen v Katzer and other early open source infringement rulings established that open source software is not a free-for-all, AFP v Morel serves as a critical decision putting commercial entities on notice that their use of content uploaded to social media sites must be consistent with the rights and limitations set out in the terms of service.  

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The 3D printer could be our generation’s Gutenberg, if laws don’t get in the way

3D printing has been around for a few years, however recent technological advancements have propelled the technology (and its creators) toward fame.  MakerBot’s CEO and Co-founder Bre Pettis has been called a game changer by Time, and last October he shared the cover of Wired with MakerBot’s newest consumer model the Replicator 2, the caption stating: “This machine will change the world.” 

3D printing technology could certainly change the world – perhaps even with such transformative capacity as the Gutenberg printing press (the creation that played a critical role in the dissemination of knowledge leading to the Reformation and the Renaissance age).  At the very least, 3D printers could revolutionize manufacturing to an extent only rivaled by Henry Ford who developed the assembly line technique of mass production.  For instance, the Replicator 2 seeks to bring desktop manufacturing to the consumer market, making it possible for those of us without a technical background to make our own 3D products at home.

But unlike the Gutenberg press, today’s 3D printers face additional hurdles that may hamper the ability of the technology to achieve its full potential.  The Gutenberg press was created in the 15th century – it preceded (and spurred) the development of copyright law.  Prior to its conception, written works were reproduced through manual copying, which was laborious and expensive.  As a result, reproduction was quite limited, and authors did not profit substantially from their creations.  However, all of this changed with the development of the movable printing press – reproduction became efficient and profits from authorship increased. These changes also created ripe conditions for the rise of unauthorized copying, and as a result copyright law emerged to provide protections (and incentive) for authors.

While the Gutenberg press emerged in the absence of copyright law, today’s 3D printers must negotiate highly developed intellectual property regimes spanning copyright, patent, trademark and industrial design.  How these legal frameworks are developed to respond to 3D printing will doubtless impact the ability of the technology to achieve its full potential, determining whether 3D printing will change the world.

One of the problems that 3D printing poses to patent owners is that it makes unauthorized reproduction and use of patented devices increasingly easy.  At the same time, it is difficult for patent owners to identify individuals who are using 3D printers in their own homes to create and use unauthorized reproductions of patented devices.  One of the ways that the law could be developed to respond to this occurrence is through the expansion of the doctrine of contributory infringement.  This would allow patent owners to seek remedy from 3D printer manufacturers and online platforms that host infringing designs.  In the copyright context the application of such ISP liability notably led to the downfall of Napster.

Another response to the potential problems that 3D printing technology poses to the rights of owners could be the application of Digital Rights Management (DRM).  In the copyright realm, DRM enables rights holders to control access to and use of content.  For instance, DRM is typically applied by entities in the music and film industries.  With the help of digital locks, such entities can prevent users from creating copies of CDs and DVDs.  The problem with DRM and digital locks is that they can extend the protection offered to rights owners beyond what the law intended.  For instance, even where copyright law provides users with the right to make a backup copy of a CD, a digital lock could be used to prevent users from accessing this right, and consequently the rights of owners extend beyond the law’s intention.  This problem is compounded in countries like the US and Canada that prohibit the breaking of digital locks, even where the locks are broken to make non-infringing copies such as backup copies which are permitted as an exception to infringement.

It is possible that 3D printing could reach Gutenberg potential, but whether this will happen or not will depend in part on how intellectual property laws are applied to 3D printing.  As patent, copyright and other intellectual property frameworks develop to respond to the new challenges that 3D printing pose to rights owners, it is important to ensure that balance and innovation are not compromised.