Copyright

Ok, well obviously from the title this is a follow up to my previous post which was “Why I have left Twitpic, and why you should too.“

The situation till now

That article has caused a lot of buzz over the past two days, I have seen massive numbers of people coming to the site through it, and plenty of comments (both on the post itself and on twitter). I still don’t think the issue is done though and there seems to be a lot of misinformation about the situation, the responses and the general malaise about the whole issue.

As a quick recap for those that don’t want to click through to the original article, in a nutshell, Twitpic edited their terms of service from a simple “You own the rights to your photos” to a rather more intrusive “You own the rights, but grants us essentially the right to do whatever we like” (I’m obviously paraphrasing here). This understandably caused a massive uproar on the internet, not least amongst those who make a living from their creative talents such as photographers and designers. One of the most interesting things I find about this change to the terms of service is the lack of the communication, the attempt to almost slip this change in through the side door. I saw no mention of this in the email address I have associated with Twitter (which presumably as a once authorised service Twitpic had access too) nor did I see mention of this on the Twitpic blog (where as if Twitter, Facebook, Ebay etc etc decide to change their TOS then I get several mails before and on the date of change).  This was simply a change that was decided upon, implemented and quietly added to the terms of service the site with no announcement.  I personally would not have even been aware had I not noticed a tweet from @iA regarding the matter.

What’s happened in the last 48 hours.

Well, things have gone quite mental in a few places regarding this issue, blog posts have been made aplenty, news articles have sprung up and much has been said and discussed on Twitter. Twitpic themselves even decided to bring something to the party, with a response on their own blog, though more on this later. I’ve had a variations in comments from ‘Thanks for letting me know’ to ‘You couldn’t be more naive’, all of which are there on the original post if you would like to go see the counter arguments (I’m firmly against censorship, I always leave all comments as they were posted).

Whilst obviously I don’t have access to the actual numbers of people using the various services available for posting pictures to Twitter, I have seen much commenting from people saying they wont use Twitpic any more, and I’ve seen a definite increase in the number of links I am seeing to pictures on other services.

I also find it interesting to note that a deal between Twitpic and WENN has been announced, a deal that will facilitate the sale of images posted by celebrities to Twitpic to the various news outlets via a licensing deal through WENN. This is exactly the kind of thing I was worried about, the sub-license and sale of images, and although this appears to be only geared towards images posted by celebrities at the moment the conditions in the TOS that allow for this equally apply to each and every user of the service.

The Twitpic Blog

As mentioned previously, Twitpic posted on their blog to state that they apologised for the new terms that were posted, and they they were wildly misunderstood, which was a deft move on their part I feel.  See, what most people don’t realise is that the initial change to the TOS for Twitpic also included a paragraph that stated:

You may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.

(Paragraph copied from IanVisits)

This seems to have been misconstrued as meaning if you uploaded an image to Twitpic, then you were no longer free to license or sell that image anywhere else. I don’t read it as that, and this is where I think the confusion has entered into the matter. I read that as meaning that if you do sell this image to anyone or anywhere else, then you must provide that image directly to the buyer yourself, and can not direct them to Twitpic to retrieve the image.

I think that it is this paragraph or clause that the Twitpic blog post refers to, and it is this which they apologise for the confusion about, not the new clauses that still remains to this moment, the clauses which I discussed in the previous article. They did however get a lot of mileage out of people thinking that this blog post referred to the points I, and others, made about the grant of license to images.

I also find it really interesting to note that of all of the posts on the first page of the Twitpic blog (at time of writing) there are only two posts that have commenting disabled; the one about the changes to the copyright, and one which is a job vacancy advert (and therefore requires no reply). I would have thought that if this really was an issue that they thought had been taken wrongly and that they wanted to clear up, then they would have allowed commenting and addressed the issues that visitors brought up, rather than just shutting up shop and hoping that the retraction of a mistake would be taken as the back tracking on the issue that most think it is, when (in my opinion) they are actually talking about a clause that most don’t even know existed.

Defending the clauses

I’ve had a few comments through various channels that these clauses are needed to operate the business and provide the service to which their users have signed up, but I disagree with this idea. Things such as “They need to sublicense for their bandwidth provider to carry the content” doesn’t ring true when it could have easily been worded as “our third party infrastructure” or “our suppliers” rather than “successors and affiliates” (affiliate marketing, familar term to anyone?). Claiming that Facebook made this same mistake and didn’t withdraw their terms is simply wrong, if you look at the TOS that Facebook initially tried to push through it claimed rights to derivative works, something that it no longer does in it’s terms. Part of the problem here is that people are accepting too much as a means of providing a service, such as thinking that derivative works is needed to provide an image service. A thumbnail (in the USA at least, where Twitpic is based) has already been classed as a transformative change (See Leslie A. Kelly v. Arriba Soft Corporation) as it is a change that provides additional functionality to the user, and as such is transformative in providing information in a way it was not previously available. A company such as Twitpic does not require a derivative license to be able to provide their service, but they do need it to be able to modify and republish the image in other formats.

So what happens now?

Personally I am still adamant on the statement that I have left Twitpic, and will no longer use their service. I doubt I would even return now if they change the terms back to what they were prior to the 4th of May because I have lost faith in the company for the very fact that they have brought in these clauses and the fact they neglected to announce the changes to their users.

I have personally settled on Posterous, though I have seen others going to other services which have even more friendly terms of service (Pesterous claims reproduction rights in line with their advertising of their own business, I have no issue with this, it is standard practise for me as a photographer to do this with portfolio photographs).

I guess my final advice is to carefully think about the images you are posting, how much you value them, and what would happen if they were reproduced without your input or decision on where they could be used (as is what you are essentially agreeing to in some of the TOS). If you’re comfortable with the terms then go right ahead, make an account and start posting (some of them can even import your old Twitpic images!), but if you’re not happy for whatever reason then keep shopping around till you find one you do agree with.

We have a plethora of services and choice for almost every aspect of our on line lives, and I firmly believe that it is through voting with our feet and moving away from services that make poor decisions and fail to respect their users that we will eventually create a system in which we are considered and catered for when changes like this are discussed in boardrooms, and not just tied in to terms that are very much one sided through clicking an ‘I Agree’ button.

~Shepy