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Twitter Piracy The Courts Your Rights Online

Judge Rules Twitter Images Cannot Be Used Commercially 103

Posted by Soulskill
from the sharing-is-not-legally-caring dept.
New submitter trekkie314 writes "Reuters reports that a Manhattan District Judge has ruled that AFP and the Washington Post infringed a photographer's copyright by re-using photos he posted on his Twitter account. The judge rejected AFP's claim that a Twitter post was equivalent to making the images available for anyone to use (drawing a distinction between allowing users to re-tweet within the social network and the commercial use of content). The judge also ruled against the photographer's request that he be compensated for each person that viewed the photos, ruling instead that damages would be granted once per infringing image only. This last point might have interesting implications in file-sharing cases — can it set a precedent against massive judgments against peer-to-peer file-sharers?"
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Judge Rules Twitter Images Cannot Be Used Commercially

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  • by Anonymous Coward on Tuesday January 15, 2013 @07:25PM (#42597867)

    If an individual were to tweet an image originally made available on a large corporation's website, you can bet the Judge would rule that damages would be granted per each viewing of it.

    • by Anonymous Coward
      Corporations can afford to hire better lawyers.
      • by Anonymous Coward

        I think they chose this outcome. The alternative was the possibility of any copyrighted work being free to use if its been put on the internet.

    • Am I wrong in assuming that probably every corporation's website has a copyright notice in small print at the bottom of all of the pages, complete with an "all rights reserved" notice? Meanwhile social, user content-based sites are governed typically by a Terms of Service and Privacy Policy page (which can, of course change without notice)? So what's the confusion?

      • by Safety Cap (253500) on Tuesday January 15, 2013 @07:46PM (#42598087) Homepage Journal
        Long ago, if you didn't post a copyright notice on your work, it would lose copyright protection. That was changed by our brave congresscritters (may Sonny Bono rot in hell!)

        Now copyright applied the moment the work is fixed.

        Unless someone posts it Public Domain or one of the CC flavors, it is Copyrighted, period.*

        *US only. YMMV, especially if you're a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

        • Still, the point is, whether required or not, corporations generally place a copyright notice on their site anyway. Correct?

          • by Anonymous Coward

            If a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's defense based on innocent infringement. Innocent infringement occurs when the infringer did not realize that the work was protected.

            That's why you put the notice, so someone can't say they infringed "by accident"

        • by Anonymous Coward on Tuesday January 15, 2013 @08:01PM (#42598201)

          *US only. YMMV, especially if you're a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

          Actually...the Berne Convention is an international agreement that was lead to the US changing its laws, rather than a decision by any lawmakers in the US.

          • by akpoff (683177) on Tuesday January 15, 2013 @11:35PM (#42599729) Homepage

            The Berne Convention was written and first formally accepted in 1886...but not by the United States. The US steadfastly refused to adopt the convention because it would have required large changes to our copyright laws and acceptance of doctrines like author's moral rights for which we don't have analogous protections.

            The US did eventually adopt the Berne Convention and did so in the only way permitted by our Constitution: Congress passed the Berne Convention Implementation Act of 1988. The US Senate then formally ratified the Berne Convention making the US a signatory to the treaty.

            So yes, (some) US lawmakers did make a decision that resulted in changing our copyright laws.

            The OP, however, is not correct in his oblique suggestion that Sonny Bono is in part or whole to blame. (Though I have no doubt Sonny Bono supported it.) Sonny Bono's name is sometimes attached to the Copyright Extension Act of 1998 but he did not vote for it. (Though he had sponsored similar legislation earlier.) He died nine months before it's passage. His wife Mary, who was elected to his Congressional seat after his death, was instrumental in getting it passed in his name.

            Berne Convention [wikipedia.org]
            Copyright Extension Act [wikipedia.org]

          • by AvitarX (172628)

            The Berne convention requires the registration be optional, but does it require that a (c) be such ?

          • The USA goes above and beyond anything that the Berne Convention politely asks for. The USA could have refused, just like with the Hague war crimes convention and a pile of other treaties, and not suffered for it. There's no point blaming some World Government tinfoil hat conspiracy for the laws that the Disney Corporation and a pile of others lobbied for.
        • by steelfood (895457) on Tuesday January 15, 2013 @09:27PM (#42598875)

          a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

          That's what happens when you don't have strong copyright controls. Especially the part about eating smelly food. Only with strong copyright controls will your food be completely bland and odorless.

        • by Anonymous Coward

          Um, no?
          CC is still copyright, just like GPL. It's simply more permissive that most are accustomed to. Public Domain, is free of copyright.

      • Am I wrong in assuming that probably every corporation's website has a copyright notice in small print at the bottom of all of the pages, complete with an "all rights reserved" notice? Meanwhile social, user content-based sites are governed typically by a Terms of Service and Privacy Policy page (which can, of course change without notice)? So what's the confusion?

        I'm not sure this is germane.

        One does not actually tweet a picture, you tweet a link to a picture, and anyone seeing that tweet hits that link (often a cached copy on a third party image service), bypassing any pages or notices. So anyone mining a picture out of a tweet would more likely pull up an image stored on some service which usually contain no copyright information.

        More interesting it the single payment for each infringement. The judge has a set himself squarely against big media here.

    • by Zordak (123132) on Tuesday January 15, 2013 @09:13PM (#42598777) Homepage Journal

      If an individual were to tweet an image originally made available on a large corporation's website, you can bet the Judge would rule that damages would be granted per each viewing of it.

      No they wouldn't. Statutory damages for copyrights are always awarded per infringed work. The only discretion for the fact finder is the amount, which can vary anywhere between $200 for innocent infringement to $150,000 for willful infringement. But it is always per work, which means that it doesn't matter if two people saw it or ten million. This is exactly what is happening in the RIAA file sharing cases, by the way. The damages are so large because there are lots of infringed works (e.g., if you shared 10 songs, damages could be up to $1.5 million).

      If you want damages based on how many people saw the picture, you would have to prove those as actual damages, either by proving that there is a profit per view attributable to the infringer, or that there is a profit you lost per infringing view. That's a lot harder than just collecting statutory damages.

      • That's a lot harder than just collecting statutory damages.

        Due process is also hard and costly. Then again, I wouldn't be surprised if corporations and the government wanted to get rid of that, too...

        • by Zordak (123132)
          Nobody got rid of actual copyright damages. Statutory damages are just easier to get if you qualify for them. It's the plaintiff's choice whether to seek actual damages or not. If you can prove them, they might be much more than statutory damages. Or they might be next to nothing and impossible to prove.
          • Nobody got rid of actual copyright damages.

            I probably didn't phrase it correctly. I meant to say that I think the statutory damages for copyright are just ridiculous, and that sometimes the excuse that people make for unjust laws is "it's too hard to punish people any other way." Or at least, it seems that way. It's just a convenient way to ruin someone's life if the corporations can't prove actual 'damages.'

      • by cffrost (885375)

        Statutory damages for copyrights are always awarded per infringed work. The only discretion for the fact finder is the amount, which can vary anywhere between $200 for innocent infringement to $150,000 for willful infringement. But it is always per work, which means that it doesn't matter if two people saw it or ten million. This is exactly what is happening in the RIAA file sharing cases, by the way. The damages are so large because there are lots of infringed works (e.g., if you shared 10 songs, damages could be up to $1.5 million).

        At whose discretion is the delineation of what constitutes a single "work?"

        To elaborate: If a P2P user is sued for allegedly sharing (for example,) two albums of equal play-length and file size*, each in its own monolithic archive file (e.g., .rar), but one album contains ten tracks and the other is a single-track DJ set, would a court more likely consider this two, or eleven works/infringements? If the latter is the norm, couldn't, say, a publisher sue for each chapter/recipe/etc. contained in an book, and

        • To elaborate: If a P2P user is sued for allegedly sharing (for example,) two albums of equal play-length and file size*, each in its own monolithic archive file (e.g., .rar), but one album contains ten tracks and the other is a single-track DJ set, would a court more likely consider this two, or eleven works/infringements? If the latter is the norm, couldn't, say, a publisher sue for each chapter/recipe/etc. contained in an book, and so forth?

          In Apple vs. Psystar, Psystar was found guilty of making about 700 illegal copies of MacOS X. MacOS X was counted as _one_ work, and Psystar was ordered to pay $30,000.

          So it's quite simple: You count separate works. A CD with 30 two minute pop songs is 30 works. Mike Oldfield's one hour Amarok is one work. MacOS X is one work. War and Peace is one work. 300 short stories are 300 works.

          • MacOS X contains many works within in, all in individual files. Your "simple" answer isn't as simple as you think it is. For instance, many classical pieces were written in "parts", all of which would now fit on a single CD. If those works were still under copyright, would each part be an infringement or would the entire piece be 1 infringement?
        • by Zordak (123132)
          A single "work" is whatever is registered at the Copyright office. If you have 100 photographs and register each one separately, then you have 100 separate works. If you register them all together as a collection, you have one work. The catch is, to get statutory damages, you have to register before infringement starts or within 3 months of first publication. So you have to decide in advance whether it's worth it to pay 100 separate $40 registration fees or one single registration fee.
          • by cffrost (885375)

            I framed my question based upon the understanding that under US law, everything anyone creates that can be considered a "work" (for example, these comments) is protected by copyright from the time the work is created... Am I mistaken, or does the registration process merely serve to codify/insure the rights-holders' claims?

            • by Zordak (123132)
              You are correct that anything with more than "de minimis" creativity can be considered a separate copyrighted work. Your comment, for example, would be a "work" under the copyright law, and copyright automatically attached to it as soon as you typed it. But before you can sue somebody on that work in federal court, you have to register it. As I said, the catch is that you have to decide what to register before infringement starts if you want statutory damages. If you wait until after infringement has alread
          • by Painted (1343347)
            No, it's not- you're works are copyrighted regardless of registration or not. I feel you're deliberately misleading us.
          • by pbhj (607776)

            >A single "work" is whatever is registered at the Copyright office //

            You're not a copyright lawyer then I take it.

            • by Zordak (123132)
              Actually, yes I am. 17 U.S.C. 411(a):

              (a) Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

              The fact that you have a copyright doesn't mean you can sue on it. If you want to sue, you have to register it.

      • by AmiMoJo (196126) *

        If you want damages based on how many people saw the picture, you would have to prove those as actual damages, either by proving that there is a profit per view attributable to the infringer, or that there is a profit you lost per infringing view.

        In other words the GP was right, a corporation would be able to claim they lost ad revenue from page impressions or paid viewings of the image and claim damages. An individual would find it much harder if the image was not produced for some commercial purpose.

        • by Zordak (123132)
          If the corporation has provable damages, why shouldn't it get the damages it can prove? That's not a double standard. It applies to anybody. Either prove your damages, or seek statutory damages if you qualify.
    • It's not double standards. The submitter is misinformed. It is indeed the case that when a music publisher sues you and the courts calculate a fine, the fine is per work, not per (other) person who made a copy. If, somehow, the copyright holder were able to prove that you hosted a single copy of "Milkshake" (or whatever the devil it is you young people listen to these days) and it was downloaded ten million times, the fine would still be, at most, $150,000 (if the copyright holder can show the infringement

  • Could this be used against Facebook and Instagram?
    • by chrismcb (983081)
      No. You give permission to facebook and instagram (don't you remember this discussion about instagram not long ago, and the reason they've lost half their users)
      BUT you could use this against facebook and instagram users who repost your photo outside of facebook and instagram
  • This is all spelled out in the Twitter Terms of Service, right? Who owns the content? Is a picture any different from text? Not in the database, except for type. You can quote a Tweet, picture and all, but you don't own it.

    • by Dahamma (304068)

      It may be spelled out for *Twitter's* commercial use, but not for any company that wants to take your image and use it for themselves.

      • by Dr. Tom (23206)

        When the higher courts get done with that, it's possible they'll decide other people can use your images, but unlikely.

        • by Dahamma (304068)

          Yeah, it would be about as likely as you being able to download a photo from the Washington Post and use it just because they had a license to it from the original photographer.

          A contract is a contract. People can claim otherwise on slashdot, but in the vast majority of cases the courts interpret the law correctly and don't make arbitrary decisions against clearly written agreements.

    • I'm pretty sure my bitmap data contains more than the lower ASCII char set
    • I'm confused. I thought Twitter had a 140 character limit. How much of an image can you stuff into 140 characters? Maybe a little ASCII art might be possible, but I wouldn't think anything like that could be copyrighted.
  • Damages for copyright infringement are always set on a per-work (rather than per-copy) basis, whatever the context. Judgments are huge in file sharing cases because they typically involve multiple tracks, each of which can fetch up to $750,000 if willful infringement is found.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Note to self: Release each panel of my comic book as its own work.

    • Up to $150,000 per work in statutory damages, not $750,000. Not that it is much less ridiculous for some random file sharer. Above that, actual damages need to be proven (good luck with that).
    • For statutory damages, this is correct. The number of infringements don't matter, only the number of works. This is set forth in the statute at 17 USC 504(c)(1).

      Of course, that doesn't mean it always works out that way. I attended the Tenenbaum case, and when the attorneys were working out the jury instructions on damages with the judge, the plaintiff's attorney suggested an instruction that calculated damages per infringement, not per work. The defense counsel was pretty bad all through the trial, IMO, and

  • Perpetual license (Score:4, Interesting)

    by bondsbw (888959) on Tuesday January 15, 2013 @07:35PM (#42597969)

    The judge also ruled against the photographer's request that he be compensated for each person that viewed the photos, ruling instead that damages would be granted once per infringing image only.

    Once damages are granted for an image, would this ruling indicate that the defendant would be able to continue infringement without ever paying again?

    • by geekoid (135745)

      Once you are convicted of a crime, are you free to do that crime again without punishment?

      • by bondsbw (888959)

        Once you are convicted of a crime, are you free to do that crime again without punishment?

        But unlike this ruling, if I commit a crime 20 times, I could be convicted for 20 crimes.

    • Re:Perpetual license (Score:5, Informative)

      by Cyberax (705495) on Tuesday January 15, 2013 @07:51PM (#42598141)
      No, they would still need to acquire a license to this image. Damages only cover the past infringements.
    • Damages cover past infringement, an injunction can issue restraining future infringement. Breach of the injunction is a contempt which can result in imprisonment or fines which are not discharged by bankruptcy.
    • by akpoff (683177)

      The plaintiff will almost certainly seek (and receive) an injunction against further infringement of the work by the defendant. I imagine it would also raise the plaintiff's next complaint against the same defendant to willful infringement with its painful $150,000 per-infringing-work penalty.

      Being found guilty and paying a fine is not a blessing to do it again.

  • Go Judge (Score:5, Insightful)

    by YodasEvilTwin (2014446) on Tuesday January 15, 2013 @07:36PM (#42597989) Homepage
    This seems like a fair and informed judgment to me. I don't think the photographer could harmed more by each view, and the distinction between re-use on Twitter and re-use elsewhere is a nuance I wouldn't expect most judges to understand. Let's hope he gets some filesharing cases and tells the RIAA they're owed $0.99 per song and no more.
    • Okay, who's the wise guy who let common sense into the court room. That judge should be severely reprimanded for ignoring the natural order of the Military-Industrial Complex.

    • by Zordak (123132)
      The absolute minimum that can be awarded per infringed work is $200, and that's if you can convince the fact finder that you infringed without knowing. For a file sharer, that's a hard case to make. Damages can go up to $150,000 per infringed work if it was willful. Also remember that in the Jammie Thomas case, it's the jury that keeps awarding huge damages. The judge has actually tried to cut it down and been reversed on appeal, only to have the next jury award an even bigger number. I get the feeling that
      • by whoever57 (658626)

        The absolute minimum that can be awarded per infringed work is $200, and that's if you can convince the fact finder that you infringed without knowing. For a file sharer, that's a hard case to make. Damages can go up to $150,000 per infringed work if it was willful

        Only if the copyright was registered within some period of first publication. Was the copyright on these photos registered in the appropriate timeframe? If not, then all that can be awarded is actual damages, not statutory damages, so no "up to

        • by Zordak (123132)
          Specifically, within three months of publication or before the first act of infringement by the defendant. I don't know if Twitter photos were timely registered, but the songs file sharers are getting sued on certainly were.
    • by AmiMoJo (196126) *

      The distinction was between reproduction for non-commercial sharing with friends, which it is implied is allowed by the author when they post to a service like Twitter, and reproduction for commercial gain.

  • by girlinatrainingbra (2738457) on Tuesday January 15, 2013 @07:38PM (#42598011)
    It's a bit ambiguous: does "once per infringing image" mean
    -- "once per image infringed", so that Agence-Presse-Francais and the Washington Post would only pay half of the cost each per each image infringed
    -- "once per infringing use [posting or publishing, not per view] of image", so that whatever the "use cost" of the image is, the Post would have to pay full use cost, and AFP would also have to pay full use cost.

    .
    I can actually see the point and usefulness of "per view" of image, because I would guess that the contractual or negotiated "use cost" of the image would be different for different uses:

    -- smaller payment for a small magazine with low distribution and readers
    -- larger payment for a large magazine with large distribution and lots of readers
    -- even larger payment for exclusive publication rights (which helps magazines sell even more copies, and also helps tabloid newspapers with paparazzi photos)
    -- some other negotiated fee for web usage, with a sliding scale for number of impressions / views / click throughs.

    So it would make sense that a web site that copied it and had a lot of page views of the image ought to pay more for infringing it than a web site that didn't. Unless of course, you bring in "statutory damages" which will not require bringing in any proof of dollar loss, merely prroof of copyright infringement.
    Etrange. Tres etrange.

  • cannot ?! (Score:4, Informative)

    by Barryke (772876) on Tuesday January 15, 2013 @08:18PM (#42598335) Homepage

    Can not be used commercially? Of course they can! They just need ask the owner first.. isn't this common sense in the US? In the Netherlands it is. News reporters contact people and ask for their consent before reusing the image they made and posted online.
    .

    • by steelfood (895457)

      Common sense does not dictate corporations' actions here. It's all about who you can intimidate and what you can get away with.

    • Sadly, too many people think "put on the Internet" means "Public Domain". If you find an image on the Internet and it doesn't specifically say that it is public domain (or under a copyright license such as Creative Commons that allows you to reuse the image for free), assume that it is copyrighted and that you can't use it without permission. Then, contact the owner of the image and ask if you can use it for your intended purpose. The copyright owner might just let you (and if he/she doesn't, then you've

  • How is 'commerical use' the criteria here? The delineation should be use within the Twitter system (nobody is copying the image, just perpetuating links to it, and within the ToS) or outside the Twitter system, where the image needs to be copied so copyright applies.

    Commerical use might help frame damages sought, but copyright (however antiquated and silly in today's world it might be) isn't about intended use.

  • No, it can't because it relies on other precedents and concepts. Specifically, the idea that transient cached data doesn't require a license or infringe. The judge ruled the only infringing copie were the ones displayed on the websites and not the ones created by web browsers caching the web pages. So called "file sharing" deliberately creates multiple infringing copies of a work. These are not transient cached copies created incidentally, but intentionally created "permanent" copies.
  • can it set a precedent against massive judgments against peer-to-peer file-sharers?
    What has the copyright infringement of a photo done by a press media to do with the copyright infringement of a lay man uploading movies to a file sharing side?
    If you copy something that is not your own work you are reliable for it. Thats it.
    What is true for big media if you upload something to youtube is also true for big media if they "steal" your twitter photo ... how retarded is the poster to ask this question?

    • by Zordak (123132)
      Also, the judge applied the same rule of statutory damages (per infringed work) that is being used in the file sharing cases.
  • Isn't this relatively simple?

    If the creator of something like a photograph publishes this, for example by sharing it on twitter, then:

    - It gets copyrighted (Berne)
    - People can see it
    - People can copy it (they do by just looking at it, both electronically and mentally)
    - People can re-share it (twitter rules)
    - People cannot sell it or make money from it due to it being copyrighted.

    This also reminds me of the famous Scientology verdict where their 'secret teachings' turned out not to be copyrighted as they wer

  • No it cannot set a precedence for file-sharing, because other judges already set a precedence for that, so it's rather weird why this judge ruled like he did.. Looking at this, it makes clear that precedence doesn't have any real value...

    • by bws111 (1216812)

      What are you (and the summary) talking about? The judge ruled exactly the same way as the judges in the file sharing cases.

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