Techdirt. Stories filed under "tos" Easily digestible tech news... http://www.techdirt.com/ en-us Techdirt. Stories filed under "tos"http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Wed, 9 May 2012 06:06:00 PDT AFP Back To Claiming That Twitter's Terms Of Service Allow It To Take And Sell Anyone's Twitpic Photos Mike Masnick http://www.techdirt.com/articles/20120507/04002718803/afp-back-to-claiming-that-twitters-terms-service-allow-it-to-take-sell-anyones-twitpic-photos.shtml http://www.techdirt.com/articles/20120507/04002718803/afp-back-to-claiming-that-twitters-terms-service-allow-it-to-take-sell-anyones-twitpic-photos.shtml 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.

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]]> they-can't-be-serious http://www.techdirt.com/comment_rss.php?sid=20120507/04002718803 Wed, 4 Apr 2012 19:59:00 PDT Court Says Sony Is Free To Change Its Terms Of Service Because Accessing PSN Is A Choice Mike Masnick http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml
Some folks were not at all happy about this and sought to file a class action lawsuit against Sony for the change -- but that lawsuit has been (pretty quickly) rejected by the court, suggesting that the main guy suing failed to show evidence of any harm. In an interesting move, the court found that the fact that you lost access to the network if you didn't agree to the new terms isn't evidence of any harm, but rather a choice. Of course, that seems a bit extreme. It opens up possibilities for companies to more or less corner users into unpleasant situations. Just change the terms and anyone can be excluded.

I'm not a fan of mandatory arbitration clauses or class action lawsuits like this where "harm" is pretty tough to show. In the end, though, it does seem like Sony should be able to choose and change its terms of service. The real issue is that it chose consumer-unfriendly options, and in a better world, less draconian alternatives would spring up to help treat consumers right. It's hard to side with Sony here (or in most situations), but the lawsuit itself does seem like a stretch.

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