Copyright And Libel Questions Hit The Twitterverse

from the you-knew-this-was-coming... dept

A few weeks back, someone pointed me to a Twitter message where one Twitter user was (jokingly) accusing another of copyright infringement for repeating a message. While the situation was amusing, you knew it was only a matter of time until the question became more serious. Mark Cuban put up a blog post this weekend asking about the copyrightability of Twitter messages. His question revolves around whether or not it’s copyright infringement for someone like ESPN to repeat what he wrote in a Twitter message, which he would have preferred they didn’t quote.

I’m certainly no copyright lawyer — so perhaps some could chime in in the comments — but it seems like there would be two issues here. The first is whether or not the content is covered by copyright — and, for most messages the answer would probably be yes (there would need to be some sort of creative element to the messages to make that happen, so a simple “hi” or “thanks” or whatever might not cut it). But, the more important question then would be whether or not ESPN could quote the Twitter message. And, there, the answer is almost certainly, yes, they could, just as they could quote something you wrote in a blog post.

If you ran down the fair use test, it’s difficult to see how a public Twitter message wouldn’t easily qualify. If it’s ESPN, it would be for commercial use, but not in the sense of “selling” the content. Plus, it’s for journalistic reasons, which is often given a fair use pass. Second is the nature of the copyrighted work — which, being a Twitter message, I would guess most judges would assume it’s expected that the content can (or even should) be repeated. The third test fails, since it would be the entire message, but the fourth test, on “the effect on the potential market for the copyrighted work” would almost certainly point towards fair use. Since the four factors aren’t weighted equally, I think the only clear “failure” is the weakest and least important of the four tests (how much of the content was used — which is way outweighed by the other factors), it’s hard to see how this isn’t a perfectly reasonable use.

But, of course, with copyright designed for a world before everyone had a printing press, we’re going to come across more such questions in the future — and I’m sure there will be a few lawsuits along the way.

For example… while it’s not a copyright lawsuit, Courtney Love has been sued for libel due to her Twitter messages. Apparently, she’s been Tweeting in anger against her former fashion designer — Dawn Simorangkir — and Simorangkir is now suing for defamation. The messages themselves may prove to be defamatory (assuming they’re not true), calling the woman:

a “nasty, lying, hosebag thief”; having “a history of dealing cocaine”; having “lost all custody of her child”; and, being guilty of “assault and burglary”

There’s also the message claiming that the designer would be “hunted til your [sic] dead,” which seems more like a threat than libelous. Of course, one could argue that the legal filing by the designer is also potentially libelous, stating:

“Whether caused by drug-induced psychosis, a warped understanding of reality, or the belief that money and fame allow her to disregard the law, Love has embarked on what is nothing short of an obsessive and delusional crusade to destroy Simorangkir’s reputation and her livelihood.”

I would imagine that, if Courtney Love were not in a drug-induced psychosis, she might find that claim objectionable.

Still, you have to wonder if there were a better way to handle this. For example, filing the lawsuit seems to call more attention to the falling out between the two, perhaps leading many more people who might be interested in Simorangkir’s work to think twice. While Love, as a celebrity, does have a certain reach, it seems like Simorangkir could better respond just by laying out the facts of the situation and telling her side of the story in a calm and clear manner, which compared to some rantings on Twitter would probably give people a good counterbalance without needing to involve the courts.

Either way, as these two stories demonstrate, we’re in for a long series of lawsuits and legal threats having to do with Twitter messages.

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Comments on “Copyright And Libel Questions Hit The Twitterverse”

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R. Miles says:

Educated posts will only be accepted.

so perhaps some could chime in in the comments
The moment I read this, I thought about how Weird Harold will totally agree anything written is copyright and copying it is infringing.

So, is it safe to assume anything he replies with will be ignored? I’d hate to see Techdirt rely on anything this person has to say regarding the issue.

For me, I don’t believe it should be protected under copyright. If we really want to get technical, then the Twitter service is also violating the law, as it takes the message from the device and copies it to its servers for distribution.

I couldn’t imagine a business being so damn anal as to believe it’ll go so far as going after the users for “infringement”, especially when these very businesses use the damn service themselves while overlooking the true copy issue by the service.

As for Mark Cuban, he obviously gets his information about copyright from Weird Harold, given they both have the same ideology about what the law should be, not what it was meant to be.

I always wonder how our forefathers would react if they saw the country they helped found today.

I can assume they’d rip up the Constitution immediately and begin redrafting it to protect the people from corporate attempt at controlling freedom of speech.

kirillian (profile) says:

Get a grip...

@R. Miles…don’t fall to this level of crap. I don’t like Weird Harold that much either, but I really thought of your opinions much better than this. Maybe you just haven’t had your morning coffee yet this morning or something. I don’t know…but stop flaming. That’s just stupid and below you.

At the same time, however, I agree. I don’t think the real issue is whether or not the LAW says that this is copyright. I think the real issue is whether or not we as participants in this government system should have to tolerate such obvious and blatant abuse and misuse of copyright/trademark/IP law.

Weird Harold (user link) says:

Re: Get a grip...

I agree that Miles must have missed his coffee this morning. Maybe one of his downloaded music tracks had a virus or something 😉

Anyway, this is one of those cases where Mark Cuban just misses it entirely. Twitter is “publishing”. Media can report published comments, quote them, attribute them, and there you go. Something said in public, be it on twitter or in front of a crowd of people, is the same thing. Public statement is public statement.

Now, I will say this: items posted on twitter shouldn’t be used without attribution. The only place where he might have a very slight chance to be right is using the entire post, in theory you cannot quote a full article from another publication. But at 140 characters maximum, a single tweet is but a sentence. I would doubt that any court of law would see anthing wrong with a properly attributed tweet quoted in another publication.

R. Miles says:

Re: Re: Get a grip...

First, @kirillian: Agreed. Believe it or not, I thought about removing the reference, but then preview lost to submit.

I did that twice today, so let’s blame it on Monday.

Second, @WH: For the last damn time, I don’t download using P2P utilities. I go straight to websites in which artists offer their music for free.

BIG difference, but I guess since I’m classified as a pirate by your definition, it doesn’t matter what I say.

Meh. Next topic.

Weird Harold (user link) says:

Re: Re: Re: Get a grip...

BIG difference, but I guess since I’m classified as a pirate by your definition, it doesn’t matter what I say.

No, you are classified as an IDIOT, so it doesn’t matter what you say. A very big difference.

@CT: My feeling is that once the post was made on twitter (removed or not) it was “published”, and is part of a larger overall website (which was not fully quoted). It is, in effect, no different from posting a press release (or mailing one out to the media). It’s out there in public, subject to discussion, etc.

No, they cannot quote him wholesale. You couldn’t write a book called “Great Tweets from Mark Cuban” and sell it. But ESPN is reporting on news, and his comments made on twitter are effectively the same as speech, a news conference, his blog posts, or any other comments he makes in a public way.

Unless I missed something here, they quoted something that was already published, yes?

C.T. says:

Re: Re: Re:2 Get a grip...

“Unless I missed something here, they quoted something that was already published, yes?”

The fact that it is published has NO bearing on whether copying it would be infringement. My point is that this likely raises a prima facie showing of copyright infringement. Therefore the burden would be on ESPN to prove fair use. This would likely cost thousands (likely hundreds of thousands) of dollars in litigation. That is the problem. Overzealous copyright owners can leverage the fact that people will not want to take the risk of a protracted litigation in order to force them to take down material that likely qualifies as a fair use.

Said another way — the fair use doctrine, as it stands, is inadequate because relying on it is too expensive.

Dave (profile) says:

What Twitter says...

1. We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours. You can remove your profile at any time by deleting your account. This will also remove any text and images you have stored in the system.

2. We encourage users to contribute their creations to the public domain or consider progressive licensing terms.

Paul says:

its kinda silly

i mean, there’s already shorthand for this practice. “RT” stands for ReTweet. It’s common occurrence on Twitter. I don’t even see why he’d be upset. He was still attributed the creation of the tweet. Plus, its like one sentence and a link that points to a newspaper article that he definitely didn’t write. Are we really saying you can copyright just a single sentence now? There’s really nothing original about his tweet.

I think he’s upset because someone else twittered about him getting fined and brought more attention to it. He didn’t mind twittering to those who followed him because they are apparently already fans of his and wouldn’t care. Now there are people who may not have exposure to Cuban who now see he got fined. Maybe Cuban sees this as negative exposure and would have been upset whether it was his tweet that was copied or not. He now thinks that maybe he can get something out of it though.

Christopher Smith says:

Legal filings and libel

The other inanity aside, claims made in legal filings (as well as in certain other circumstances, such as in Congress) are “privileged” and thus don’t qualify as libel; IANAL, but I believe that the rationale is that since the facts haven’t been decided yet, you have the right to make your claims and see what the court says.

C.T. says:

As per usual, Weird Harold has completely mangled the law.

It is true that an unpublished comment may be given added deference from a reviewing court (Nation v. Harper and Row). However, just because something is published doesn’t mean that news agencies have free rein to re-publish it. That is an absolutely absurd proposition. Do you think a newspaper could publish a poem simply because the author had previously published it?

A twitter message that contains more than a few words is certainly copyrightable. The resolution of the case would turn on application of the fair use doctrine.

Attribution has absolutely NOTHING to do with copyright infringement.

Weird Harold (user link) says:

Re: Re:

CT, jeez – I don’t think the media is going to republish his entire tweet page. If you see on a blog or news paper:

Mark Cuban posted on his twitter page “can’t say no one makes money from twitter now. the nba does )”, a comment which has gotten him in a lot…

Would it violate copyright? Nope – because it is quoting someone on something that was said or posted in the public eye (and source is cited).

The Nation v. Harper and Row appears to involve publication by Nation of material before it was actually published and in the public eye. It also invovled significant amounts of material (about 500 words, more than a full page), etc.

When Mark Cuban posts on twitter, it is in the public eye and published. Nothing in Nation v. Harper and Row appears relevant to a twitter post once it is made public.

Anonymous Coward says:

Cuban getting fined by the NBA is news? I thought it was a daily occurrence?

Libel is a different issue. Sure, this person can go out and post a logical response, one that proves all the points wrong, but who reads that? How fair is that?

Look at the AIG bonus situation. There is a huge uproar, protests and one idiot Iowa politician calling for suicides. Then it is explained that all the AIG guys that were responsible for the mess have already been shown the door and the bonus was going to people brought in to clean up the mess and put themselves out of jobs.

Think that’s fair? One guy resigns in the NY Times, where is the fair in that deal?

Anonymous Coward says:

Twitter "conversation"

If I were ESPN’s attorney I would explore the idea that twitter posts are part of an ongoing commentary. Even if you quote one entire post, you are only using one part of a larger “document” consisting of a series of tweets.

This might not be a complete defense, but it could be part of a larger “fair use” argument.

C.T. says:

I don’t know why I bother, but for some reason I feel compelled to expose Harold for knowing absolutely nothing about the topics he goes on and on about.

“Would it violate copyright? Nope – because it is quoting someone on something that was said or posted in the public eye (and source is cited).”

This is completely wrong on several levels. First of all, comments that are “spoken” are not copyrightable, unless they are fixed in some tangible form (ie written). Quoting what a person SAYS in public does not implicate copyright law. This is not the issue that is presented by the wholesale copying of someone’s twitter message.

In regards to my reference to Harper & Row, I think you should re-read my post. I specifically noted that the case related to unpublished works.

As much as you would like to deny it, the original post raises issues that should concern us all.

You wouldn’t be so annoying if you didn’t act like an authority on issues you clearly know very little about.

Duane says:

just sad,

Copyright is such a drain on our economy. Perhaps we can interest some think-tank or university in running some actual numbers on how much we, as a nation spend on litigation, enforcement, lobbying, technology, and overall wasted time dealing with these so-called “rights holders”.

I say we take copyrights and reduce their maximum term to 5 years from first publication, regardless of media format. I would further stipulate that only works which have been published to some exclusive audience (paying customers, members of a particular site, attendees at an event, etc) would qualify for this protection. This way, anything you say in public, broadcast over the air, or throw up onto a website which does not require you to be a member to read is in the public domain, and may be quoted, republished or reproduced. After 5 years, I can even sell you a copy of my DVD’s, put the movies online, etc. This would, of course, destroy the big businesses that have built their businesses on top of our ridiculous copyright laws, but it would provide legitimate content creators with a protected period in which to get paid for their works, without perpetuating the welfare state in which artists get paid forever for a days work. In reality, the value of a professionally produced DVD, book, art print, etc. does not go down after the 5 years are up, and the market would see to it that the option which presented the best value would win out. After 5 years, the original creator may have to compete with others who are making their work more attractive or repackaging it in new ways. Content would be more available than ever before, and people would not have this stupid leg to stand on in cases like this. Oh, and the “exclusive group” rule would extend to works in progress, unreleased music, etc.

David says:

you can't copyright really short works

A copyright must have original expression. If the “expression” is just a single word or phrase or a list of ingredients or something, that can’t be copyrighted (maybe you can trademark it though). A lot of tweets (not all of them, but a lot) might be so short that they cannot contain enough original expression to be copyrighted.

See this law student’s summary of a case from the 80s on whether direct-mail marketing envelopes with particular phrases on them could be copyrighted:

Maybe the Mark Cuban tweet was long enough or original enough to be copyrighted. But you could not claim copyright over a tweet that doesn’t really say anything in an original way, because it’s too short.

egs: THE_REAL_SHAQ can’t claim copyright on a tweet like “@funkadelicfunk yup” or “@dancing_piglet hey”
and not even “@jsims34 yup I’m n manhattans”
but possibly can claim copyright on something like “@pwn_or_die nuttn yet homie o I kno the big tryna get his team n da playoffs”

Charles Carreon (user link) says:

Tweet-infringement -- Too stupid to discuss at length

This nonsense has been through the legal grapevine too often almost to discuss. Of course everything written is subject to copyright protection, but before you can file a lawsuit, you’d have to register the copyright. Then if you were stupid enough to file a lawsuit for “infringement of a Tweet,” you’d have to deal with a defense of “implied consent to republication.” (Sounds good, huh? I just thought it up, but maybe I wasn’t the first, since it’s so damned obvious.) Argument in support: the purpose of posting messages on Twitter is to have them repeated; therefore, he who tweets consents to republication. Case dismissed.

Kay Lam-Beattie (user link) says:

The first question to ask is whether a tweet is subject to copyright.

Copyright arises as soon as something is reduced to ‘material form’ (that is, something said verbally isn’t copyrighted, but the copyright arises when the voice is recorded, for example). Electronic form counts as material form, so a tweet COULD be subject to copyright.

In most jurisdictions registration is NOT necessary for something to be protected by copyright. But for copyright to apply to a tweet, there must have been some level of skill and effort involved in writing it. And it has to be original.

That’s where many tweets would fail the test. “LOL” is neither original nor involving skill/effort.

But some tweets could certainly be subject to copyright.

If a tweet is subject to copyright, that means that others can’t copy it(etc) without permission.

BUT arguably everyone on twitter gives an implied licence to followers to RT their tweets, especially since it’s common practice. Not sure how far you can stretch this though.

Otherwise you might have to rely on fair use provisions in the copyright legislation in your jurisdiction. These vary a bit between countries, but you might be allowed to reproduce a tweet for comment, parody, reporting and so on.

Remember though, that in order to sue someone for copyright infringement (particularly copying) you’d would have to prove they copied your tweet. Otherwise every time anyone wrote a sentence, no one else in the entire world could use that sentence ever again, which is clearly ludicrous.

Oh, and remember that suing someone for copyright infringement usually also involves paying a lawyer lots of money. This tends to cut down on the likelihood of anyone suing over tweets a fair bit.

Anonymous Coward says:

Tweet-infringement -- Too stupid to discuss at length

Legal or not? These kinds of opposing views are each justifiable. I too will sing the song of whoever pays me more. Send all certified checks and money orders to 05751-0925, made payable to V. R. Polewsky.

Courts thrive and are forever entertained by reading about and listening to opposing arguments, which may continue until the money runs out on one side or the other. If adequately intrigued, they’ll ask the parties for an encore, or two (refrain). Judgment in favor of the nicest tune.

Additional dances are then scheduled in appellate courts, tunes adjusted for the audience (law clerks).


Vincent says:

Since it’s fixed, it’s potentially subject to copyright.
As has been said, it must have some level of originality or skill to be granted the constitutional protection of copyright.
Assuming it has protectability, then the first defense is implied consent (think a coloring book. It’s copyrighted, but the publisher gives implied consent to make derivative works by coloring in the pictures).
RT is consented to. But this was publication on a website or in a magazine, not a RT.
That leaves fair use.
However, this is pretty clearly for journalistic purposes and highly likely to constitute fair use (a balance of first amendment freedom of the press with the copyright clause).

Cuban posed some interesting quetions, though mostly irrelevant ones: like is a tweet when you don’t limit your followers more like a letter to the editor in the newspaper or more like a personal letter to a close friend. Of course both are subject to the same copyright protection, but it’s an interesting question for other reasons.

As to defamation, that is going to be hard to prove because she has to show that someone read the tweet and believed it and as a result she suffered harm to her reputation.
And what circuit was it that recently found defamation when the content was true? Defamation by publicizing truth with malicious intent is a whole new trap to watch out for.
I think she did file the suit to increase publicity or possibly to force some kind of settlement, but I don’t see her winning it.

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