AFP Still Not Giving Up On Its Bizarre Claim That Twitpic Images Are Freely Licensed To Anyone

from the common-sense-ruling dept

Earlier this year, we wrote about an absolutely bizarre lawsuit, where the newswire AFP -- a company who has claimed that merely linking to its stories is infringement -- had sued a photographer whose photograph AFP had used without permission (and with a false credit). The story was so convoluted and filled with confusion that it was really quite amazing that anyone involved is still pushing forward with the case. The "short" version is that a photographer in Haiti when the earthquake happened earlier this year opened a Twitter and a Twitpic account soon after the earthquake, in order to show off some of the photographs he had taken. Another person copied those photos and pretended they were his (also on Twitpic) and offered to license them. The AFP saw the photos from the second person (who didn't actually have the rights to them) and then posted them on its own stories, crediting the second guy.

Soon after this, the actual photographer saw the photos and sent a cease & desist. The AFP then sued the actual photographer, claiming that it had not violated his copyrights. The AFP's argument for this was so confused that it raised questions about whether or not the AFP even really understood what the company had done. First, it claimed that Twitter's terms of service says the following:
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
It seems the AFP somehow interpreted this to mean that any content posted to Twitpic could be freely used. There are two massive problems with this line of argument. First, Twitpic isn't Twitter (something that no one involved in the lawsuit on either side seemed to realize -- which is just downright sloppy) and posting an image to Twitpic has nothing to do with Twitter's terms of service. Second, even if the images were covered by Twitter's terms of service, those terms are boilerplate language describing the license between the user and Twitter -- not between the user and any third party. This is plainly obvious from the language of the clause, which notes that it "grants us" the license. The "us" is Twitter. Not any third party. The Twitter license then does allow Twitter to post that content elsewhere -- but that right does not just extend to any third party. This is pretty standard stuff that is found in just about any internet service's terms of use.

I had kind of figured that after this rather massive set of mistakes was highlighted, AFP would realize its errors and back off from the lawsuit. No such luck apparently. Venkat Balasubramani has an update on the case, suggesting that the AFP is sticking by its totally illogical claims. What brought this on is that Twitter has apparently clarified its terms of service, to avoid this sort of situation (even though the original terms seemed pretty clear), but the AFP is still insisting that its tortured interpretation of the terms supports its position. It's somewhat bizarre to see that no one involved in the lawsuit has realized just how insanely weak this position is. It seems like a huge waste of effort for an interpretation of terms of service that, if actually believed, would likely come back to haunt AFP.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    ChurchHatesTucker (profile), Nov 16th, 2010 @ 4:30pm

    Hrm.

    How is reposting photos any different that repeating news?

     

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      Pixelation, Nov 16th, 2010 @ 5:10pm

      Re: Hrm.

      "How is reposting photos any different that repeating news?"

      It isn't very different, although it may be legally. In this case however, someone reposted them, offered a free license for anyone to use them and never credited the original photographer.

       

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        ChurchHatesTucker (profile), Nov 16th, 2010 @ 5:17pm

        Re: Re: Hrm.

        That whole 'second party claiming/ceding rights they don't have' thing is definitely problematic. Not sure what the solution would be. Except narrowing the rights to begin with.

         

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      Ryan Diederich, Nov 17th, 2010 @ 3:28am

      Re: Hrm.

      President Kennedy was shot.

      Thats news.


      Me going to eBay and buying a 300 dollar camera and taking a thousand dollar trip down to haiti and going through the horrors of the earthquake and following disaster, happening to shoot a few heartfelt shots.

      Thats not news, thats my hard work, my hard earned money, and my way of living life. This guy worked hard to get this picture, and he deserves credit. This is a news company, they arent even using the image for profit, so they should simply change it for him.


      I have climbed mountains and braved frightening seas to get the perfect shot, and I would be pretty ticked if someone came around and tried to take credit for my work.

       

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      abc gum, Nov 17th, 2010 @ 5:26am

      Re: Hrm.

      AFP - lol

       

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    James Carmichael (profile), Nov 16th, 2010 @ 4:49pm

    Grammar Nazi

    "seemed to realized" second to last paragraph. I make this one all the time...

    As for the article, what are the damages being claimed here? I can totally picture the AFP people all sweaty in a board room, trying to sort this one out... "Is that the best we can come up with!? Well we don't have a choice. It's either that or admit the fact that maybe we made a mistake."

     

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      Kingster (profile), Nov 16th, 2010 @ 4:59pm

      Re: Grammar Nazi

      I can totally picture the AFP people all sweaty in a board room, trying to sort this one out...
      All hot and bothered... Lathering each other up... Ooops. Sorry. Wrong site.

       

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    Anonymous Coward, Nov 16th, 2010 @ 4:57pm

    Lawyers

    It's somewhat bizarre to see that no one involved in the lawsuit has realized just how insanely weak this position is.

    You don't know much about lawyers then. They realize it perfectly well, they just haven't finished milking their clients yet.

     

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    Angry Puppy (profile), Nov 16th, 2010 @ 7:05pm

    AFP Posturing

    I read the article and looked up AFP. The Agence France-Presse (AFP) is a French news agency. I thought only Americans did this kind of ill thought out corporate legal blustering.

     

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      Any Mouse, Nov 16th, 2010 @ 10:49pm

      Re: AFP Posturing

      Just about anything with 'Corporation' in their name, somewhere, and has yearly profit margins in the millions, will do this sort of thing.

       

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    Anonymous Coward, Nov 17th, 2010 @ 12:22am

    Grow up, photographers. You think you're entitled to win some lotto when someone wants some of your photographs. Grow up and work for hire like the rest of us.

     

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      abc gum, Nov 17th, 2010 @ 5:31am

      Re:

      Yeah, grow up and realize you dont stand a chance on this one way street. Big money gets all pissy about lowlifes stealing their stuff, which was stolen fair 'n square.

       

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      chris, Oct 18th, 2012 @ 12:56am

      Re:

      If you think photographer's wanting to get paid for their work is like an entitlement to win the lotto then you obviously do not understand how difficult and expensive it is to take a GOOD photograph (perhaps you dont know what a good photo is) or what it means to play the lotto. How you can even say that makes me think you are either a very disgruntled ex-photographer, someone who never attempted to do anything interesting with their life or an AFP executive (or perhaps all three!).

      Everyone should take note that these Haiti photos in question WON THE WORLD PRESS PHOTO AWARD... thats the highest honor for editorial photography, this is not just some idiot with an Iphone.

      Its so sad how little respect photographers get, its a very challenging art form, and you have to really fight to get paid.

       

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    Anonymous Coward, Nov 17th, 2010 @ 7:53am

    Cool! Can I get them to sue me?

     

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    DogBreath, Nov 17th, 2010 @ 9:36am

    I hope AFP wins the case

    It would seem to me that with a new precedent set by a ruling in favor of the AFP, all anyone need do is upload any copyrighted work to a website with terms that everyone can use the files and give out a free perpetual license to use the content in any way the end user sees fit. It would no longer matter if the original copyright owner allowed it or not. No more worries about RIAA, MPAA, etc, nor any fly-by-night lawsuit trolls from now until forever.

    If that is the logic AFP is bound and determined to stick behind in their overly ambitious case, I hope they win. :)

     

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    Nastybutler77 (profile), Nov 17th, 2010 @ 5:26pm

    Worst. Lawyers. Ever.

     

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