As Expected, Court Tells AFP That Posting An Image On TwitPic Does Not Grant Anyone A License To Use It

from the can't-believe-this-case-went-forward dept

One of the more ridiculous lawsuits of 2010 involved AFP -- the big news organization that once sued Google claiming that merely linking to AFP news articles was copyright infringement. However, when it came to others' copyrighted works, AFP took a rather different position. After the Haitian earthquake a year ago, AFP got into a legal tussle with photographer Daniel Morel, who is based in Haiti.

The details and the series of mistakes that resulted in the lawsuit are long and convoluted, so you can read that link to go through all of the details (on both sides of the case), but the basic summary is that Morel posted his photos to TwitPic and announced them on Twitter. Someone else, a guy named Lisandro Suero, copied those photos and posted them to his own TwitPic account. AFP found the photos that Suero had posted, and got permission from Suero to use them (there's a dispute over whether or not AFP really knew the photos were Morel's when it did this). Morel contacted the AFP, pissed off about all of this, and demanded money. In response, AFP sued Morel pre-emptively, asking the court to issue a summary judgment that it did not infringe. AFP's initial line of reasoning was that Twitter's terms of service grant anyone a license to use any such content. This is (a) ridiculous (b) wrong and (c) totally irrelevant, because the photos were uploaded to TwitPic, not Twitter. Morel's initial response was equally ridiculous. He failed to note the difference between TwitPic and Twitter himself (initially), and attacked AFP for not doing its due diligence to find out who really took the photos. Yet, at the same time, he also argued that Twitter's terms of service shouldn't apply because he hadn't bothered to read them. It seems rather silly to claim in a lawsuit that the other party had a responsibility to go that extra step and research something, while at the same time claiming that your own failure to read something, meant you could ignore it.

We had assumed -- incorrectly! -- that once both sides actually learned of the many mistakes they had made that they would look to end the lawsuit as quickly as possible. However, we were amazed to find out that the AFP still wanted to push forward with its completely unwinnable argument that the terms of service granted anyone a license to use the photos, even though the plain language of the clause in question says exactly the opposite.

Thankfully, the court agreed that the case made no sense at all and AFP's arguments were a non-starter. It rejected AFP's attempt to dismiss Morel's countersuit and denied AFP's (original) request for summary judgment. One interesting part of the ruling, concerned a somewhat obscure part of the DMCA involving "copyright management information." The question was whether or not AFP misused this CMI in not taking the content that Morel had put on his Twitpic page, but not on the image itself. The court ruled that the information on the Twitpic page was sufficient as CMI, and the AFP not including that info represented a violation of section 1202. As Eric Goldman notes in his analysis, courts have varied on whether or not 1202 covers content not included in a work itself, so this is one more ruling to add to the pile on that issue.

All in all, it seems likely that AFP will finally just pay up and settle (ditto for all the downstream news orgs who used the photo via AFP and its partner Getty). Of course, I'm still curious why they all couldn't have claimed a "fair use" exception for "reporting," but perhaps that's another discussion for another day...


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    Zacqary Adam Green (profile), Dec 30th, 2010 @ 3:11pm

    Because if they claim fair use, then that means other people can too.

    Not that rightsholders are above such hypocrisy, it's just that it might accidentally set an inconvenient precedent or something.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    The Infamous Joe (profile), Dec 30th, 2010 @ 3:23pm

    Crowdsourced editing

    Thankfully, the court agreed that the case made on sense at all and

    on == no

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Dec 30th, 2010 @ 5:24pm

      Re: Crowdsourced editing

      Oops. Fixed. Thanks.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Oct 21st, 2011 @ 1:02pm

      Re: Crowdsourced editing

      on == no???

      The heck it does. Maybe:

      on = no

      Or:

      on => no

      Or even:

      on <= no

      But there's no way on is equal to no.

      (OK, so I'm a perverse C programmer with a warped sense of humour. Bite me!)

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Oct 22nd, 2011 @ 9:01am

      Re: Crowdsourced editing

      on == no???

      The heck it does. Maybe:

      on = no

      Or:

      on => no

      Or even:

      on <= no

      But there's no way on is equal to no.

      (OK, so I'm a perverse C programmer with a warped sense of humour. Bite me!)

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Alex Bowles, Dec 30th, 2010 @ 3:31pm

    A Fair Use claim would be okay if the subject of the story were the picture itself (as it is here).

    However, claiming they can use the picture freely just because it *relates* to news is not only outside the scope of Fair Use conventions, ruling otherwise would demolish the AFP's business model completely.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    ChurchHatesTucker (profile), Dec 30th, 2010 @ 4:29pm

    Hrm.

    He failed to note the difference between TwitPic and Twitter himself (initially)...

    I wonder if that's part of the reason that Twitter has been getting more insistent on 'defending' their trademark.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Dec 30th, 2010 @ 5:00pm

    "Thankfully, the court agreed that the case made on sense at all and AFP's arguments were a non-starter"

    Don't you mean made no sense?

    Also, are you supporting copyright enforcement here?

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Onnala (profile), Dec 31st, 2010 @ 12:19pm

    As a Phtographer

    What really worries me about this case is the ease that they just up and 'sued' over the photo's. It would be understandable if they thought that the guy was a troll, but once it was known this is the fellow that took the pictures, it should never have made it before a judge. There simply should have been a settlement offered and then the AFP could go after the guy that 'sold' them the photo's in the first place for the money they had to pay out.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Larry, Jan 1st, 2011 @ 1:53pm

    infringemement

    Someday we will learn the injustice done humanity through copyright.

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This