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
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
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.