Two years ago, we wrote about one of the most bizarre copyright lawsuits we've ever heard of. News giant AFP (Agence France Presse) -- for reasons that I still cannot begin to comprehend -- decided to proactively sue a photographer, Daniel Morel, after it (AFP) had taken his photos (of the earthquake in Haiti) from TwitPic without permission, and distributed them for sale via Getty Images. So why did AFP sue? Because Morel contacted them upon discovering this, demanding lots of money. And what was AFP's reasoning? Well, it tried to claim that Twitter's terms of service allowed this. There were all sorts of problems with that idea. First of all, the photo was on Twitpic, not Twitter, and the two are different companies. But, more importantly, neither of the terms of service from Twitter nor Twitpic (AFP eventually figured out the difference) allowed AFP to do what it claims. The AFP appeared to deliberately misinterpret the terms of service, which simply give Twitpic the right to make use of the images -- but that does not extend to third parties automatically, which is what AFP implied.

Oh, and did we mention that AFP itself has a history of copyright maximalism, including suing Google for merely linking to AFP stories, with AFP's headline showing in Google News?

And, while a judge eviscerated AFP's claims about TwitPic's license, it appears that AFP is back to relying on that as the crux of its legal argument.

And, it gets even worse. During discovery, Morel seems to have received a bunch of pretty damning evidence from AFP suggesting that the company knew all along what it was doing. There was the fact that AFP's director of photography for North and South America reached out to Morel prior to downloading the images. The same guy apparently copies other images from other sites. Multiple people seemed to suggest from the very beginning that they shouldn't use these photos -- including the Director of Photography at Getty, who pointed out that Morel regularly used rival photo agency Corbis. There was also some other damning evidence, including editing the copyright management info, and uploading the image under multiple names, and only issuing a kill notice on one name.

Oh yeah, and then there was the fact that someone inside the AFP sent an email saying:

Anyway, AFP got caught with a hand in the cookie jar and will have to pay.

And this was before AFP decided to sue Morel. Perhaps the company should have just paid up in the first place.

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...

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.

We were just discussing the Facebook/Power.com mess, involving the question of whether or not a user can choose someone else's tool to access the data that they, themselves, put on another site, and it appears we may have another such case to look at. Twitpic, an online service for easily posting pictures to Twitter, is apparently quite upset that Posterous, an online blogging platform, has set up an automated system to export your own photos from TwitPic to Posterous. As soon as the exporter was announced, Twitpic not only blocked Posterous's tool, but got the lawyers involved. As the Posterous folks note, it's not clear how any of this actually breaks the law. Setting it up so users can access their own photos is a perfectly reasonable thing to do. In fact, for many user-generated content sites these days, offering export functionality is considered good manners. Going so far as to threaten legal action against 3rd party exporters is going too far.