January 29, 2013 Leave a comment
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.