Court, Once Again, Explains To AFP That Twitter's Terms Don't Give It The Right To Use Any Photo

from the stupid-lawyer-tricks dept

Nearly three years ago, we wrote about one of the most bizarre lawsuits we'd ever seen. AFP (Agence France-Presse), a news organization with a history of copyright maximalism (it once sued Google for linking to its stories), had sued photographer David Morel after he accused AFP of using images he had posted to TwitPic in their own news reports. Yes, you read that correctly. AFP used Morel's photos without permission (and actually credited them to someone else), and then AFP sued Morel (rather than the other way around). There were all sorts of confusing factors in the lawsuit (and counterclaims from Morel) that suggested neither party had even the slightest clue what they were talking about.

First off, both AFP and Morel seemed to not realize that TwitPic and Twitter were two totally different services with two totally separate terms of service agreements. Second -- and this is the key whopper -- the AFP insisted that the Twitter and TwitPic terms of service (once they realized they were two different services) granted a universal license for AFP to use those photos. This was a blatant misreading of the terms. Both sites had standard boilerplate licenses that allowed just those services to display content. Those terms only applied between the user and the service. But AFP insisted that because the user granted a license to Twitter and TwitPic, that automatically meant that such a license was granted to third parties like the AFP as well. That, to put it mildly, takes a special level of misunderstanding -- and I'm amazed that AFP had a lawyer willing to stand behind it. In fact, a judge explained all this to the AFP back in 2010. At the time, we expected AFP would just quickly settle. After all, it had clearly copied the images and it had bizarrely sued first on a ridiculous legal theory that a judge explained made no sense.

Instead, the AFP doubled down on that same argument, insisting that its reading of the terms of service was correct. We should be blunt here: there is simply no reasonable way to read the terms of service the way the AFP did. The terms are clear: users retain the rights to their content, and the license only applies to the specific services in question. There is no legitimate way to read the terms of service and believe it automatically grants a license to third parties.

So, once again, the court has needed to explain to the AFP that its legal theories are ridiculous.
The Court need not fix the precise scope of any license created by the Twitter TOS in order to resolve the dispute before it. Rather, it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case.... Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove the Photos-at-Issue from Twitter and license them to third parties, nor does it “necessarily require” such a license.... Indeed, this is the fatal flaw in AFP’s argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.
The court even points out that this very argument was rejected entirely in that earlier ruling we mentioned above, and appears perplexed that AFP would continue to advance an obviously faulty argument, which it had already been told was faulty.
Arguing for third party beneficiary status, AFP advances on this motion many of the same arguments that Judge Pauley has already considered and rejected with regard to the express language of the Twitter TOS. For example, the plain language of the Twitter TOS does not support finding a license covering AFP’s conduct, even as a third-party beneficiary. As Judge Pauley already explained, the Twitter TOS spell out expressly the entities to whom a license is granted, namely Twitter and its partners—and AFP does not contend that it is one of Twitter’s “partners.” Id. Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS. Indeed, if Twitter intended to confer such a benefit, it easily could have manifested this intent. Instead, the Twitter TOS specify that the license was granted to Twitter and its partners, that the license “includes the right for Twitter to make . . . Content available,” and that additional uses of this content “by Twitter” or its partners may be made without compensation. In short, rather than showing that the benefit AFP claims was “necessarily required,” ... by the Twitter TOS, the terms of this contract cut against finding that Twitter intended to confer the benefit of a license on AFP to sell licenses to the pictures posted on Twitter or TwitPic.

In addition, in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s yours is yours – you own your content.” These statements would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder.
So it is unsurprising that AFP loses that point yet again.

What's a bit surprising is that the AFP didn't even try to raise any other defense, such as fair use. While fair use might be a long shot it seems like a much stronger argument than the ridiculous claims about the terms of service. Having, once again, dispensed with the AFP's license argument, the court notes that it can rule in favor of Morel's motion for summary judgment against the AFP.

Morel had also sued both Getty and the Washington Post in this fight. The AFP had turned around and "licensed" the photos it had copied to Getty and the Washington Post had used them via its contract with Getty. There was some additional confusion, because the AFP first credited the photos to someone else -- another person who had copied Morel's photos and posted them to Twitter, claiming the photos were his own (though there were some indications that the AFP knew that the photos they were using had been copied from Morel, as they'd already reached out to Morel about them).

Getty tried to defend itself by claiming safe harbors under the DMCA, basically saying that if there was infringement, it was AFP's fault, and AFP is just a user, so Getty is protected as a third party under the DMCA. The judge, however, rejected this claim. This part of the ruling is actually fairly troubling. The court seems to ignore how "service provider" under the DMCA has been widely accepted as a broad definition. Instead, the court decides that a very limited definition applies, and Getty is not a "service provider" because it sells stuff, rather than provides what the court considers a "service." That is, the court tries to distinguish between selling goods and offering a service, and says that since Getty sells stuff, it's not a service provider, and thus not protected by the DMCA. If that interpretation stands, watch as copyright holders start citing it in attempts to block safe harbor claims from others. At this point, however, the court just says it's an issue to be determined at trial, rather than at the summary judgment stage.

As for the Washington Post, that situation is confused by the fact that Morel's lawyers sent a bunch of communications to the Washington Post about its use of the images, but they mostly chose to send them to general emails or addresses (sometimes mislabeled) which people at the Post claim were never received. Making matters even more complicated, when someone from the Washington Post did seek to delete the images, confusion over the Post's system meant that the person believed the images had been deleted, when they really had not been. Once again, these are issues that will be explored at the trial, assuming there's no settlement.

Of course, as we've explained during all of this, Morel's case isn't the greatest either. Beyond making some bizarre initial claims (including admitting that he never bothered to read the terms of service in the first place), he's been demanding crazy sums of money -- way beyond anything that he could have possibly hoped to charge for a license. In fact, he was demanding high statutory rates for each copy of the image that was used, rather than recognizing that the reuse of his image was all part of a single infringing action. As part of this, he was arguing that AFP and Getty were secondarily liable for each and every later infringement, and that they should each have to pay for every such case. That would add up to a ridiculous sum of money -- potentially over $100 million.

Thankfully, the court quickly disabuses him of such a crazy claim, pointing out that the language of copyright law is pretty clear that the statutory rates cover "all infringements" associated with an infringing action. It even points out that Morel's interpretation would be "absurd."
The statutory text is not a model of clarity on this issue but—on the whole—it favors Counterclaim Defendants’ interpretation rather than Morel’s. For instance, § 504(c)(1) provides for “an award of statutory damages for all infringements involved in the action, with respect to any one work.”... The intent of this statute therefore appears to be to constrain the award of statutory damages to a single award per work, rather than allowing a multiplication of damages based on the number of infringements. Morel’s interpretation would effectively bypass the limit of a single statutory award for “all infringements” of a work because it would hold Getty or AFP liable for multiple infringements of a single work. This conclusion is further supported by § 504(c)(1)’s provision that a group of defendants who are all jointly and severally liable with each other are also to be liable for only a single statutory damages award, suggesting that a copyright holder should not be allowed to multiply damages against an infringer based on the infringing activity of jointly liable thirdparties. Relatedly, as pointed out in McClatchey v. AP, 2007 U.S. Dist. LEXIS 40416, at *10 (W.D. Pa. June 4, 2007), the interpretation Morel offers “would render the word ‘any’ [in ‘for which any two or more infringers and jointly and severally liable’] superfluous, or alternatively, would rewrite the statute to impose a single award only where ‘all infringers are liable jointly and severally.’”

Also counseling against Morel’s proposed interpretation is that it would lead to absurd results.... First, as Counterclaim Defendants point out, Morel’s interpretation of the statutory damages provision could lead to awards of statutory damages that are massively disproportionate when compared to the actual harm caused by the infringing defendants. Indeed, as discussed above, Morel’s position in this case is that—notwithstanding the extent of the actual harm that Counterclaim Defendants may have caused—he is entitled to tens or hundreds of millions of dollars of damages. The Court finds it unlikely that Congress intended the statutory damages provision of the Copyright Act to create such a result.
Of course, that wasn't Morel's only crazy damages argument. He further argued that the parties were liable for each distribution of the image (separate from the claims above) because (he claims) they "circumvented" protection measures by removing his copyright information -- and that they had to pay statutory damages for each image distributed there as well. His ridiculous interpretation claimed that with all of the images AFP and Getty distributed, they owed him another $44.5 million for removing his copyright information. Yes. Million. On top of the other statutory damages he asked for above. Again, the court was not buying it:
The omission of the references to damages “per act” differentiates the damages available for violations of § 1202 from those available for violations of § 1201, and demonstrates that damages should not be multiplied based on the number of recipients of the Photos-at-Issue. Rather, damages should be assessed per violation—i.e., based on AFP and Getty’s actions in uploading or distributing the Photos-at-Issue, regardless of the number of recipients of these images.
As we've been saying from the very beginning of this lawsuit, neither side looks very good. Both are making ridiculous arguments -- and that may be part of the reason the case was not settled earlier. Someone at the AFP must realize that their licensing claims make no sense. But if Morel is arguing for hundreds of millions of dollars, you could see how they've been unable to reach an agreeable settlement. Now that the court has clearly rejected the key arguments on both sides, perhaps it means that AFP will finally fork over some money to Morel to settle the case -- and that the amount forked over will be significantly lower than the millions he's demanding.


Reader Comments (rss)

(Flattened / Threaded)

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    weneedhelp (profile), Jan 16th, 2013 @ 12:39pm

    What's a bit surprising is that the AFP didn't even try to raise any other defense, such as fair use

    Not surprising at all. The content owners will never use that angel even if they are 100% in the right. It would set a precedent for fair use that could be used against them someday. They would rather it be a grey area to exploit when it suits them.

     

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      IronM@sk, Jan 17th, 2013 @ 1:08am

      Re: What's a bit surprising is that the AFP didn't even try to raise any other defense, such as fair use

      Yes, it's the holiest of defenses and let's face it, they're far from holy.

       

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    identicon
    Danny, Jan 16th, 2013 @ 12:57pm

    I don't blame him for asking for so much money....

    I bet he was trying to pull something from the playbooks of the record industry where they seek judgements that amount to thousands of dollars per song. Possibly on the idea that the amount is so high under the presumption that its an attempt by the record studio to get back all the losses that were incurred by the song being downloaded.

    For example the original judgement against Jammie Thomas was 1.92mil for the infringement of 24 songs, which comes out to 80k per song. The argument being that for each of those 24 songs there was 80k of lost revenue.

    Maybe that's what Morel was thinking here?

     

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    slopoke, Jan 16th, 2013 @ 1:01pm

    Wait. What?

    If I have 20 copyrighted mp 3 files in a directory for sharing on a file sharing network that's 20 cases of infringement. And I need to pay statutory damages for each. But if a corporation copies and resells 20 of my pictures on TwitPic that's only 1 case of infringement and they should only pay damages for that single case?

    Goose/Gander and all that.

     

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  •  
    identicon
    Mr. Applegate, Jan 16th, 2013 @ 1:21pm

    Alright, I have a question...

    I am no lawyer, but isn't what the judge is saying Morel can't do (quoted below) exactly what the MAFIAA does when they go after those who pirate?

    Maybe I need to go read it again, but it sure sound like that is exactly what the MAFIAA AND the courts do to pirates.

    "The statutory text is not a model of clarity on this issue but—on the whole—it favors Counterclaim Defendants’ interpretation rather than Morel’s. For instance, § 504(c)(1) provides for “an award of statutory damages for all infringements involved in the action, with respect to any one work.”... The intent of this statute therefore appears to be to constrain the award of statutory damages to a single award per work, rather than allowing a multiplication of damages based on the number of infringements. Morel’s interpretation would effectively bypass the limit of a single statutory award for “all infringements” of a work because it would hold Getty or AFP liable for multiple infringements of a single work. This conclusion is further supported by § 504(c)(1)’s provision that a group of defendants who are all jointly and severally liable with each other are also to be liable for only a single statutory damages award, suggesting that a copyright holder should not be allowed to multiply damages against an infringer based on the infringing activity of jointly liable thirdparties. Relatedly, as pointed out in McClatchey v. AP, 2007 U.S. Dist. LEXIS 40416, at *10 (W.D. Pa. June 4, 2007), the interpretation Morel offers “would render the word ‘any’ [in ‘for which any two or more infringers and jointly and severally liable’] superfluous, or alternatively, would rewrite the statute to impose a single award only where ‘all infringers are liable jointly and severally.’”

    Also counseling against Morel’s proposed interpretation is that it would lead to absurd results.... First, as Counterclaim Defendants point out, Morel’s interpretation of the statutory damages provision could lead to awards of statutory damages that are massively disproportionate when compared to the actual harm caused by the infringing defendants. Indeed, as discussed above, Morel’s position in this case is that—notwithstanding the extent of the actual harm that Counterclaim Defendants may have caused—he is entitled to tens or hundreds of millions of dollars of damages. The Court finds it unlikely that Congress intended the statutory damages provision of the Copyright Act to create such a result.
    "

     

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      Mr. Applegate, Jan 16th, 2013 @ 1:34pm

      Re: Alright, I have a question...

      Oh, wait. I understand. In one case we have an individual wronged by a large corporation. In the other case we have a large corporation wronged by an individual.

      It would be totally unfair in the former to expect the large company to pay more for it's piracy, while in the later it is totally expected that poor pirate not only pay for his copy but everyone else's copy too (even if those copies don't exist through any action on his part).

      Got it that makes a lot of sense.

       

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    identicon
    PRMan, Jan 16th, 2013 @ 1:42pm

    The French

    The French pretending not to understand English. So, what's new?

     

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    bob, Jan 16th, 2013 @ 1:45pm

    It's a miracle

    First I prayed for this site to embrace the paywall and then along came Kevin Smith and Louis CK and I was granted my prayers. Then I prayed for any sign that this site will occasionally take the creators' side and now it's here!

    We could have been treated to the usual blather about fair use. We could have heard again and again that AFP was just doing a "remix" and the Twitter users should get a new business plan. We could have heard that the photographers were just evil artists out to sue people.

    But we didn't. Yay! Finally a recognition that fair use isn't infinite and waving the magic "remix" word won't make everything okay. It's about time!

     

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    aerilus, Jan 16th, 2013 @ 2:26pm

    why do I get the feeling that I will be seeing an article soon about twitter suing twitpic for trademark infringement?

     

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    Anonymous Coward, Jan 16th, 2013 @ 5:19pm

    I love the smell of hypocrisy in the evening.

     

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    identicon
    Anonymous Coward, Jan 17th, 2013 @ 2:41am

    why should the case be settled for less than 'hundreds of millions of dollars'? if the case was the other way, he would be expected to pay that amount. like all 'entertainment industries', huge amounts are only valid when they want them, not when they have to pay out!!

     

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    btrussell (profile), Jan 17th, 2013 @ 5:52am

    "But AFP insisted that because the user granted a license to Twitter and TwitPic, that automatically meant that such a license was granted to third parties like the AFP as well."

    I'd give them that ruling.

    Then as soon as a movie, song, software program is licensed to one individual, it would automatically mean all individuals had a license.

     

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    Tex Arcana (profile), Jan 17th, 2013 @ 6:23pm

    Those pesky French: always insisting they're right, even when they've been proven so wrong that a body part got chopped off.

    Kinda like Monty Python & the Holy Grail's Black Knoght...

     

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    Andy J (profile), Jan 20th, 2013 @ 5:41am

    Getty and Safe Harbor.

    Not sure why you should find the idea that Getty is not a an OSP which qualifies as a safe harbor 'troubling', Mike. OCILLA is fairly clear in its defintion of a service provider. Furthermore 17 USC § 512(k)(1)(a) says "the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received." (my emphasis). Getty fails on two counts. Firstly the user first submits their pictures to Getty for editorial scrutiny so does not submit directly to the website (as is the case with Youtube or Flickr). And secondly, Getty applies tracking metadata and a visual copyright notice on each image before it goes up on the site, so modifying the original submission.

     

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


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