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...