The TwitPic Terms of Service Debacle

TwitPic recently kicked off a firestorm when it changed its terms of service to, seemingly, prevent its users from reselling or redistributing images uploaded to the service.

The change, which was first noticed on May 10th, though had been modified on May 4th, exploded across Twitter and the blogging world resulting in hundreds of tweets and prompting at least some TwitPic users to cancel their accounts and delete their photos.

Specifically, Twitpic’s revision said that users:

may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.

This controversy caused the company to very quickly change its TOS to “clarify” the rights that its users have over their content. The terms were changed to read as follows:

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

However, to make matters more complicated, TwitPic, the day after the second TOS change, announced a new deal with WENN, a company that sells various types of media to news outlets.

According to WENN, the deal is very limited. WENN’s CEO Lloyd Benny said that, “WENN is only permitted to distribute images posted by a very small number of celebrities, so 99.99999999% of TwitPic users remain totally unaffected by the arrangement.”

Still, this hasn’t done much, if anything, to calm user’s fears about TwitPic and the rights its claiming in its uploader’s works. Though the company says it’s taking these steps out of the interest of their users, many are seeing it as a rights grab and nothing more, especially considering the original TOS simply said, “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on or affiliated sites. All images uploaded are copyright © their respective owners.”

However, I think that most viewers are missing the bigger picture on this issue and, while what TwitPic did is certainly worthy of attention, it’s far from the only service to make a rights grab for your work.

In fact, there are many that are far worse.

The TOS Problem

Under copyright law, as the creator of original content you retain all of the rights in your works once they are fixed into a tangible medium of expression. However, if you want to share those works, such as images, on the Web by putting them on third party services you must first grant them a limited license to use the work in various capacities.

But while this license is a legal necessity, some companies abuse this necessity and the fact that very few read the terms of service to grab far more rights than they actually need. In fact, in many corners of the Web, this is par for the course.

Looking at TwitPic as an example, their current TOS allows them to use the work in almost any capacity related to their service and to sublicense or transfer that license to other parties, who in turn can use the work in any capacity related to their business.

Though you can terminate this agreement by deleting your images, TwitPic also reserves the right to continue using them for a “commercially reasonable” time after ward and that any sublicenses TwitPic grants may be irrevocable.

In short, under the current, “fixed” terms, TwitPic can still do pretty much whatever they want with your image, including selling licenses to WENN. The only thing that really changes is that you are free to license the images yourself, basically competing with TwitPic and their partners over your own work.

However, TwitPic is just a convenient example of the problem. As TheNextWeb showed, nearly every other photo sharing company out there has almost identical language buried in their TOSes.

In short, leaving TwitPic doesn’t necessarily solve the problem and, sometimes, can make it even worse.

The Big Picture

The problem with TOSes is fairly simple and goes well beyond copyright. There’s a natural imbalance to them that can not be resolved easily.

The problem is that, when it comes to these terms, for the company it is in their best interest to ask for and get all the rights they think they can get away with. Since few people actually read the terms they are agreeing to, that is often quite a bit.

However, even if a company is being completely honest and straightforward about its terms, it needs to get the rights for what it wants to do today and the rights for what it thinks it might want to do later. That has to consider the possibility of selling the company, bringing new services online and so forth.

Unfortunately, a lot of the rights a company might genuinely need in that preparation are the same rights that one might use if they were planning on reselling or otherwise misusing the content that’s being uploaded.

For example, it makes sense for hosts to ask that the rights they get be sublicenseable because they might sell the company and need to transfer those licenses. However, such terms can also be used to sell works to third parties.

To make matters even worse, most terms of service have a clause that enables the provider to change the terms at any time, for any reason, without any notice and have you agree to it. Theoretically at least, this means that the terms you agree today could be anything tomorrow.

However, we trust our partners and providers to not abuse these rights because, in a word, it would be wrong. Unfortunately there is very little legally stopping any company from abusing their terms of service. This applies not just to photo sharing services, but everywhere you put your work on.

The Role of the DMCA

One strange side element to this, and one reason hosts (at least those in the U.S.) may be unlikely to abuse the rights they are often given in their terms, is because of the DMCA’s safe harbor provisions.

To recap, the DMCA safe harbor provisions protect hosts and services like TwitPic that receive and provide access to material uploaded by users. In these cases, as long as the host has no knowledge of the infringement, doesn’t profit directly from it, has no editorial control over it and works to remove infringing material when appropriately notified, they can not be held liable for infringement.

However, whenever a host gets in the business of re-licensing works, most likely, these protections disappear. If, for example, an image uploaded to TwitPic is an infringing work and that image is licensed out to others, it’s at least possible TwitPic could be held liable.

Though much of this is untested, YouTube’s licensing of content to outside partners is an issue of contention in its ongoing battle with Viacom, though that case deals with blanket licenses, not ones for individual works.

Still, most hosts are going to think twice before they even risk losing their DMCA safe harbors, even on just a few works, especially when there is no practical way to patrol their service and stop infringement proactively. There are many ways that abusing the TOS could go well beyond what those safe harbors protect and that, in turn, may help keep users safer from TOS abuse.

Bottom Line

The issue of overreaching terms of service is practically an epidemic online. Companies that don’t overreach on their terms are few and far between. While this doesn’t necessarily make those companies or services that do evil, it does mean that they are protecting their interests extremely well, often at the expense of yours.

There are, unfortunately, no easy answers to this problem. Though hosts could adopt Creative Commons Licensing as a requirement of using the service, that extends rights to the rest of the world as well as the host, something many won’t be comfortable with.

There is a clear need for greater simplification and clarity in TOS language, especially as it relates to copyright. Unfortunately, I don’t think this initiative is going to come from hosts as they have the most to gain from the current system.

Even if they don’t intend to abuse the rights they’re given, they don’t want too many questions about the license they force their uses to give them and why they need what they ask for.

Unfortunately, it seems that very few users are willing to ask the questions regardless.