AFP Back To Claiming That Twitter's Terms Of Service Allow It To Take And Sell Anyone's Twitpic Photos

from the they-can't-be-serious dept

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.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, May 9th, 2012 @ 6:13am

    whenever something from france is involved with copyright, expect it to try and outpace the americans.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, May 9th, 2012 @ 6:20am

    it (AFP) had taken his photos
    Mike, I think this needs to be changed to "had used his photos" - AFP used his photos, but they did not "take" his photos. "Taking" implies that Morel doesn't have them anymore, and perpetuates the myth that culture is property.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, May 9th, 2012 @ 6:26am

    One rule for one.
    One rule for the other.

    Nothing wrong with copyright. Move along...

    reply to this | link to this | view in thread ]

  4. icon
    DannyB (profile), May 9th, 2012 @ 6:33am

    AFP can't have it both ways

    A copyright maximalist, like AFP, they should live by their own statements and beliefs. The thieving pirate freetards at AFP took or stole Morel's photos which are his physical property. AFP wouldn't go and steal someone's car and take it for a joyride, would they? Then why do they steal someone's property? Doesn't AFP know that every view of those stolen photos represents a lost sale? Since they willfully and knowingly did this, they should incur the maximum statutory damages for each viewing of the stolen photos, just like Righthaven, RIAA or MPAA would demand.

    After all, it's only fair.

    reply to this | link to this | view in thread ]

  5. identicon
    spaetz, May 9th, 2012 @ 6:41am

    ToS pretty clear

    Given that the very first sentence of Twitpics ToS under heading Copyright is:

    "All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user's content from Twitpic and upload to other sites for redistribution and dissemination. "

    I don't see *any* reason how even laymen can misunderstand the situation, not to speak of an organization whose commercial purpose it is to use and license pictures in and out.

    reply to this | link to this | view in thread ]

  6. icon
    BentFranklin (profile), May 9th, 2012 @ 6:50am

    If you are rabidly homophobic, you are probably gay.

    Similarly, if you are rabidly anti-pirate, you are probably a thief.

    reply to this | link to this | view in thread ]

  7. identicon
    David, May 9th, 2012 @ 7:00am

    Are we sure that these weren't photographs of ants?

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, May 9th, 2012 @ 7:26am

    Maybe all the photographs they are using were actually taken by chimpanzees and so the actual copyright owner is unclear.

    reply to this | link to this | view in thread ]

  9. icon
    Nathan F (profile), May 9th, 2012 @ 7:43am


    Please note that you use the word "probably", which means that it isn't a 100% sure thing. No please go "probably" take a long walk off a short pier.

    reply to this | link to this | view in thread ]

  10. icon
    Marcel de Jong (profile), May 9th, 2012 @ 7:50am

    Re: ToS pretty clear

    It's in English, and they're French? [/stereotype]

    But you are absolutely correct. And I don't think AFP beliefs what they said in court over this. But merely hoped to confused the judge with it, smoke bomb tactic so to speak.

    reply to this | link to this | view in thread ]

  11. icon
    Baldaur Regis (profile), May 9th, 2012 @ 7:55am

    Re: AFP can't have it both ways

    Why should the photographer have to go through the hassle and expense of protecting his own property? Isn't this exactly the reason why SOPA/PIPA/etc are so vital to the world? So that filthy pirates like AFP can no longer get a free ride on the backs of....wait a minute. this guy is just a self-employed peasant. Never mind.

    reply to this | link to this | view in thread ]

  12. identicon
    DogBreath, May 9th, 2012 @ 7:59am

    Re: Re: ToS pretty clear

    I have a feeling that the AFP "smoke bomb tactic" is going to end up like this in court.

    reply to this | link to this | view in thread ]

  13. identicon
    Digitari, May 9th, 2012 @ 8:47am


    Maybe ICE can take their Website off line for a year or so while they "investigate"

    reply to this | link to this | view in thread ]

  14. identicon
    Thebes, May 9th, 2012 @ 11:19am

    In Corporatist Amerika laws protect only Corporations.

    reply to this | link to this | view in thread ]

  15. icon
    BentFranklin (profile), May 9th, 2012 @ 11:36am

    Re: Re:

    I'll rephrase it to be more accurate in both halves:

    If you are homophobic, you are more likely than the average person to be gay.

    If you are a large rights-holding corporation, you are definitely a thief.

    reply to this | link to this | view in thread ]

  16. icon
    hmm (profile), May 9th, 2012 @ 4:51pm


    I think you've got that slightly muddled. Chimps are what's running the AFP these days...well that and brain damaged lemurs.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, May 10th, 2012 @ 3:32am

    Re: Re:

    this resulted in Nathan accidentally claiming that all homophobes are gay.

    reply to this | link to this | view in thread ]

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