The relationship between copyright and social media has been fraught with policy-defining lawsuits in the past few years. The legal confusion doesn't seem to be clearing up anytime soon. Tweet the news: Tweet
Last week, investigative journalist Teri Buhl involuntarily became the center of the attention for her Twitter page’s bio. Ending with “No Tweets Are Publishable,” she warns other users not to reproduce any of her content.
In 2011, Senator Sheldon Whitehouse's staff tried something similar. Sheldon's communication director and digital director maintained that their tweets should be considered "off the record" and therefore unable to be copied. They removed the declarations from their pages shortly after being informed that publicly available information, no matter the conversational intent, cannot be considered confidential.
Legal scholars and tech experts agree that there is no validity of such disclaimers. Criminal defense lawyer Mark Bennett first noticed Buhl’s declaration when a friend brought her Twitter page to his attention.
After Bennett repudiating her claims, Buhl proceeded to contact Bennett via email, even going so far as threatening a lawsuit. One of Bennett’s followers, Marc Randazza (also a mass communication and legal scholar), succinctly rejected Buhl’s claims in a Tweeted response: "Moronic. You don't get to say something in public and then say 'that's off the record.'"
In effect, Twitter users don’t give up ownership of content disclosed through the service, but they do share their publishing rights within the realm of Twitter. This co-ownership is one way social media has set itself apart, and the ramifications on free speech and copyright has generated more than a few legal battles.
Just last month, photographer Daniel Morel won a lawsuit placed against him in 2010 after news agencies fought to use his documentation of the earthquake in Haiti without his permission.
Judge Alison Nathan ruled that both The Washington Post and Agence France-Presse (AFB), a French news organization, violated Morel’s rights and Twitter’s TOS by taking content from the site and repurposing it. Twitter only grants users the right to distribute tweeted content elsewhere on the site, not a commercial license.
One feature that has particularly blurred the lines between theft and fair use is embedded tweets. By placing the corresponding code of a particular Tweet in a webpage, the associated content — text, links, articles, and as of a few weeks ago, pictures and video — is automatically formatted for viewing. Anyone can easily take original content off Twitter and transport it elsewhere on the web.
For example, here is a tweet from the @IVNetwork page:
"Social media sites have become a widespread communications tool all across the world." @repeliotengel #SNOPA ow.ly/hul17 — IVN News (@IVNetwork) February 11, 2013
The embedding of tweets is an extension of services provided by Twitter and therefore abides by the TOS. What makes it potentially problematic is that a user may post on Twitter copyrighted content from Tumblr, Flickr, and others which may not share Twitter’s relaxed outlook on content sharing. Once this is transposed onto another website as an embedded Tweet, credit to the original source is absent. Although no specific cases have arisen challenging this practice, one could argue it encourages users to violate the fair use doctrine by not including citation.
As it stands now, Teri Buhl’s argument holds no water because users cannot mold a service’s functionality — a free service, no less — to their liking.
Ironically, her problems with re-posting content only began once she attempted to exempt herself from Twitter functionality. Buhl eventually did make her Twitter page “protected," an option that lets the owner choose who can view their page, but she only did this after the community’s backlash to her legal threats.
Twitter is essentially an open public forum where ownership is fluid and authorship inconsequential. However, its explicit TOS and compliance with existing copyright law keep it grounded in the conventional treatment of intellectual property that has existed since the printing press. Tweet quote: Tweet
Although the legal precedents for future digital copyright laws are now forming, Twitter’s technological antecedents and the conventions they have established make it clear that individuals maintain control over their own property, not the public audience with whom they interact.