Instagram's new content license (it still doesn't own your content)

Rian van der Merwe posted a tweet asking me to comment on the changes to Instagram's Terms of Service:

@pauljacobson I thought you might be able to shed some light? b.elezea.com/post/221145426…

— Rian van der Merwe (@RianVDM) April 30, 2012

Rian posted the new license from the terms on his one blog and I took a quick look at it (I am in a lock-down here at work so I haven't had time to review the full terms for this post). The new license states the following:

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.

Rian's (and, I'm sure many other people's) concern is nicely summed up in the rest of his post:

Here’s my non-lawyer interpretation:

We don’t own your stuff, but we can do whatever we want with it.

Which kind of sounds like it can be shortened to:

We own your stuff.

Any lawyers out there who can clarify what’s going on here?

The subtext here is that the Facebook acquisition has poisoned this popular service and Facebook is encroaching on Instagram users' rights over their content. As Web services go, this content license is typical and hardly a land grab which it may be made out to be. As I mentioned in my previous post about the Google Drive license terms –

This clause clearly states that Dropbox doesn’t claim ownership of your data but the more important set of provisions are those dealing with the license Dropbox takes from its users when it comes to accessing and making use of the data you upload to Dropbox. Bear in mind that all of these services will have a license of some sort. A license is a set of permissions you, as the user, give to the provider and that enables the provider to receive, manipulate and otherwise handle your data. It’s an essential component and nothing to be alarmed by in itself (at least not if you are comfortable with the basic idea of a provider having access to your data as part of your use of the particular service).

Instagram's license is fairly broad but it could be even worse. The license is basically designed to enable the service to operate. In the absence of a specific license Instagram could fairly convincingly argue that the permissions set out in this license would be implicit in the unspoken license users would grant to Instagram merely by using the service. In other words, when you use Instagram, the license provisions are implied by your use.

By comparison, here is the license Facebook takes from you:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

What I find interesting about the Instagram license is that it is implicitly in favour of Instagram, Inc (the company behind Instagram); it isn't transferrable and it isn't even sub-licensable. This means the license is limited to Instagram and you don't give Instagram the right to license your content to Facebook or any other party. The wording is a little unclear because the license gives Instagram the ability to distribute "part or all of the Site in any media formats through any media channels" and yet it doesn't permit the content to be sub-licensed or to transfer the license to another party. This is probably a flaw in the license language because it is notionally problematic for anyone to consume other users' posts in a way that would require those consumers exercising the user's rights under copyright and which is not covered by an exception to copyright infringement like fair dealing or fair use.

Moving away from the legal geekery, the new Instagram license is not a land grab. It is a pretty reasonable license given the nature of the service and doesn't equate to "We own your stuff". Rather it's more like "We can do things with your stuff to make Instagram work".

Is Pinterest a den of copyright thieves?

Background

A debate whether Pinterest is flouting copyright laws by allowing its users to post, or "pin", images and videos to the site is raging online. If you haven't heard of Pinterest, it is one of the hottest new social networks that encourages users to share stuff they find on the Web. Pinterest's focus is on images and videos and the service gives users ways to republish images on the site and categorise them in "Boards". I found a great introduction video which explains the site with a series of demonstrations:

The site is enjoying tremendous uptake and once you start using it you can understand why. It enables people to create collections of ideas for their homes, brides use it to source inspiration for their weddings and share them with friends and so on. It is a truly social service but it relies on its users republishing 3rd party content to the site so questions about the copyright implications are understandable. One group of content owners who are particularly perturbed about Pinterest are photographers whose works are being published and shared on the site. Mike Masnick over at Techdirt believes this is not what photographers should concern themselves with and points to Trey Ratcliffe's post (read this post for an expanded discussion about this) about the benefits of having his photographs "pirated" as support for his position that Pinterest's benefits far outweigh any potential harm photographers may suffer by having their works pinned on the site:

Either way, his point is a strong one, and it's really no different than what many people have made to reactionary folks in other parts of the content industry. You can spend all your time trying to kill innovation or stop people from doing what they want to do... or you can bask in the wonderment that people want to do stuff, encourage them to do so, and make it easier for them to help spread your works... all the while making it easy for them to support you. Ratcliff seems to be a perfect example of our discussion on the benefits of being open, human and awesome.

Exclusive rights

Regardless of the benefits of sharing more openly or even tolerating copyright infringement, content creators are entitled to protect their rights so the question remains what those rights are and whether Pinterest is either directly infringing copyright or is facilitating copyright infringement by its users? I'll explore these questions in the context of South African copyright law which is largely governed by the Copyright Act, No. 98 of 1978.

Images and videos are categorised as "artistic works" and "cinematograph films", respectively. Provided this content is original and reduced to a material form, it is generally protected by copyright. This means that the content's copyright owner has a number of exclusive rights in and to that content –

Nature of copyright in artistic works.

7. Copyright in an artistic work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) 　 Reproducing the work in any manner or form;
(b) 　 publishing the work if it was hitherto unpublished;
(c) 　 including the work in a cinematograph film or a television broadcast;
(d) 　 causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;
(e) 　 making an adaptation of the work;
(f) 　 doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Nature of copyright in cinematograph films.

8. (1) Copyright in a cinematograph film vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) 　 Reproducing the film in any manner or form, including making a still photograph therefrom;
(b) 　 causing the film, in so far as it consists of images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
(c) 　 broadcasting the film;
(d) 　 causing the film to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the film, and is operated by the original broadcaster;
(e) 　 making an adaptation of the film;
(f) 　 doing, in relation to an adaptation of the film, any of the acts specified in relation to the film in paragraphs (a) to (d) inclusive;
(g) 　 letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the film.

Barring exceptions to copyright infringement (more about that below) and a license from the content owner granting permission to exercise these rights (more on this below, too), any exercise of these rights would likely be copyright infringement. Section 23(1) deals with this specifically and states the following –

Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorize.

Copyright infringement exceptions

At this point the law becomes a little tricky. The Copyright Act recognises a series of exceptions to copyright infringement. This means there are uses of copyright protected content which, but for these exceptions, would be infringing uses. I won't republish the sections of the Act for the sake of some semblance of brevity but below are the principles which come out of the Act (this is not a complete treatment of these exceptions):

• In respect of photographs –
  • personal or private use does not infringe copyright;
  • using the photographs for the purpose of reviewing or criticising them is similarly not infringing; and
  • "using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work".
• In respect of videos –
• "using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching [is similarly not infringing]: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work".

Unlike artistic works, cinematograph films don't carry the same exceptions that permit use for "personal or private use". In the United States there is a broad exception called "fair use". We don't have fair use in our law but we do have "fair dealing". That said, "fair dealing" is pretty much limited to literary and musical works (think print publications and sheet music).

Back to Pinterest

So what does this mean so far? Well, before you even look at Pinterest's terms of use, you know that you can probably copy photos and publish them to Pinterest under the "personal or private use" exception for artistic works but the same doesn't apply to videos. If you had permissive licenses to republish those photos and videos on Pinterest from the content creators that would resolve your dilemma but that would depend very much on where you get the photos and videos from (there is a wealth of content on the Web released under flexible licenses like Creative Commons but this has to be specified - your default is always that the copyright owner reserves all rights and that means you don't have any).

Pinterest's terms of service contain content licensing provisions. These provisions comprise the broad license users grant to Pinterest and licenses Pinterest grants to its users. The purpose of these licenses is to ensure that the site can continue to operate but the challenge is that the licenses are not always in line with the rights users have to use the content on the site. Here are the relevant provisions:

Pinterest Content and Member Content License

Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Pinterest Content solely for your personal and non-commercial purposes. Subject to your compliance with the terms and conditions of these Terms, Cold Brew Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Member Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Application, Services, or Site Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Cold Brew Labs or its licensors, except for the licenses and rights expressly granted in these Terms.

Member Content

We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

In many instances it may be legally impossible for users to grant the license Pinterest takes from its users and for Pinterest to re-license that content back to users. Even where a photograph or video is made available under a permissive Creative Commons license, Pinterest's license terms are at odds with those liberal licenses. What this means is that, in the absence of legally competent permissions, using the content on Pinterest could infringe copyright. This would seem to be the case with video content and with Pinterest's use of photographs published to the site which are not licensed for that purpose. Users republishing photographs may be protected by the copyright exception I mentioned above.

Pinterest is aware of these concerns and published a post recently titled "Growing Up" in which the Pinterest team pointed out its efforts to comply with US copyright legislation and the "take down notice" procedure which gives rights holders the ability to have infringing content taken down –

With all that growth, we’ve gotten more questions from reporters and Pinners. In the past, we’ve been pretty quiet, but we want to get better about answering questions openly with people who are interested in Pinterest. We decided to start today by talking about copyright.

As a company, we care about respecting the rights of copyright holders. We work hard to follow the DMCA procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.

Pinterest also introduced a mechanism a little like the robots.txt mechanism where copyright owners can incorporate code into their content links to prevent Pinterest from pinning that content. This may or may not be much comfort for copyright owners but I find myself going back to Ratcliffe's, Masnick's and numerous others' points about the benefits of sharing more openly and ignoring many infringing uses (sometimes even encouraging it). It comes down to whether a copyright owner is interested in exploring a more innovative model or prefers more control. Either way, there seems to be grounds for concerns about Pinterest and copyright infringement that don't seem to have easy answers.

Injecting sanity into UK copyright law

British lawmakers are exploring measures to ease an increasingly absurd music licensing restriction as part of a broader copyright reform initiative. According to the New York Times:

While taking action against file-sharing, the government is offering a quid pro quo by moving to liberalize the rules on personal copying. Surveys have shown that most Britons were either unaware that format shifting was illegal or that they flouted the prohibition anyway.

“If you just tell people, ‘you can’t copy this CD that you bought, for personal use,’ they’re never going to respect you when you tell them it’s wrong to copy for others,” said Simon Levine, an intellectual property lawyer at the firm of DLA Piper in London.

The absurdity in the current position has its routes in a legitimate interest in protecting content creators' rights including the right to exploit their content commercially. Unfortunately the music industry has taken advantage of this legitimate form of protection a little too far. I wrote about this in about December 2008 and the following bears repeating:

While it may have been conceived to stimulate creativity, the use of copyright has changed over time to effectively become a bar to creativity and innovation because copyright holders have elected to rather use copyright to lock down their works, preventing the exploitation of those works except in terms of licenses they grant. These licenses permit other people to make use of the works by granting them limited rights to the works concerned. Take a music CD as an example. Many people labour under the misapprehension that when they buy a CD from a music store they become the "owner" of that CD and can do with it what they wish. If you take a look at the tiny print at the back of the CD on your shelf you will notice that when you bought the CD you actually licensed the CD from the nebulous "music company" and you have very limited rights to the music which do not include the right to make copies of the music (whether onto another CD or by ripping the CD to your computer) or pass the music around. You can pretty much listen to the CD and appreciate the fine album art in the company of your personal CD playing devices. You can't play the music in public or make a remix of your favourite tune and share it online. If you do anything outside the very limited parameters of the license granted to you when you handed over your hard earned cash to the cashier, you are committing copyright infringement. That is what licenses do, they set the parameters of your use of the content they are created for and any use outside the parameters of the license is unauthorised and constitutes copyright infringement.

Digital music players are everywhere: iPods and similar music players, phones and a variety of computers. The technical requirement that consumers buy multiple copies of their preferred music for each device and form factor makes no sense. While American copyright law allows consumers to rip their CDs and play the music on their chosen media player or device under fair use, that a personal or private use exception to copyright infringement is excluded from uses of sound recordings (music qualifies as a sound recording in the sense I'm referring to it in this post) that are not copyright infringement in our Copyright Act. This means that under South African copyright law, ripping CDs or otherwise format shifting is illegal and constitutes copyright infringement, at least when it comes to consumers buying CDs and moving that music on to their preferred digital music player.

Hopefully the steps taken in the UK will take begin to take root in South Africa at some point in the near future. The original purpose of copyright protection is being abused by the music industry to protect its anachronistic business model and its profitability. In practice little benefit filters down to artists themselves unless those artists are one of the very few big names. We sorely need copyright law reform and alternatives to the current industry model are popping up again and again, with remarkable success. If anything, the moves in the UK are encouraging because they may be the beginning of a new legal trend that strikes a better balance between consumers' desires and artists' interests. I previously wrote the following:

Copyright law was originally and is still intended to foster creativity. What we find, in practice, is that Big Media (my term for the international music and movie industry) is engaged in a cold war against new business models and copyright infringers and, almost in keeping with George W Bush-style rhetoric, have made the choice consumers have one between supporting an aging and increasingly ineffective business model and supporting the "terrorists" (these people may be actual terrorists or something similar from Big Media's perspective).

…

This is not an argument against copyright law but rather its application by vested interests that are often at odds with creators' interests.

---

Image credit: So Much Music by Martin Cathrae, licensed CC BY-SA 2.0

What Dropbox's revised Terms of Service mean for you

When Dropbox amended its Terms of Service it sparked a controversy about the popular file sharing and cloud-based storage service's apparent user content grab. As with virtually all controversies about expanded content licensing provisions, many users feared Dropbox was claiming ownership of their content. This is not correct at all but the amended license provisions are cause for concern for a number of other reasons.

The clause which sparked the controversy was amended between the time the new Terms of Service first went up and about a day later when Dropbox clarified its position after receiving quite a bit of feedback from users. The introduction to the Terms of Service (with defined terms) and the current licensing provisions are as follows:

Dropbox Terms of Service

Thank you for using Dropbox! These terms of service (the “Terms”) govern your access to and use of Dropbox (“we” or “our”) websites and services (the “Services”), so please carefully read them before using the Services.

By using the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.

You may use the Services only in compliance with these Terms. You may use the Services only if you have the power to form a contract with Dropbox and are not barred under any applicable laws from doing so. The Services may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you. We may also remove any content from our Services at our discretion.

The starting point is that you agree to these Terms of Service by using the Dropbox service. This is a common provision in Terms of Service. You very rarely have a workable model involving users actually signing a piece of paper or negotiating terms and conditions for their access to the service. That sort of thing becomes almost impossible to manage satisfactorily if you are negotiating on an individual basis with large groups of users and retain a hope of providing a consistent service. This clause typically ties into another clause that allows the service to make changes to the Terms of Service which you agree to by continuing to make use of the service.

Not only do you bind yourself but if you are using Dropbox in an organisation then you are also representing to Dropbox that you have the necessary authority to bind the organisation too. That can be quite a leap to take so if your organisation makes use of Dropbox (there are business packages) then you really should make sure that someone who does have authority to bind the organisation has read the Terms of Service and is comfortable binding the company. This may sound a little silly but there are legal principles dealing with principals and agents which would come into play here.

Your Stuff & Your Privacy

By using our Services you may give us access to your information, files, and folders (together, “your stuff”). You retain ownership to your stuff. You are also solely responsible for your conduct, the content of your files and folders, and your communications with others while using the Services.

We sometimes need your permission to do what you ask us to do with your stuff (for example, hosting, making public, or sharing your files). By submitting your stuff to the Services, you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent reasonably necessary for the Service. This license is solely to enable us to technically administer, display, and operate the Services. You must ensure you have the rights you need to grant us that permission.

How we use your stuff is also governed by the Dropbox Privacy Policy, which you acknowledge. You acknowledge that Dropbox has no obligation to monitor any information on the Services, even though we may do so. We are not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information you may be able to access using the Services. We may disclose information about your account or your stuff to law enforcement officials as outlined in our Privacy Policy.

This clause contains the controversial licensing provisions. Like virtually any Web-based service you are required to grant the service a fairly broad license to enable it to render the service. The reason for this is that copyright law grants copyright owners (often the users) exclusive rights over their content. These rights are often the rights a service like Dropbox needs to exercise just to be able to receive your content and manipulate it as part of the service. A license is a set of permissions which enables Dropbox to do this. The big question is whether the license Dropbox takes goes further than is necessary (the Twitpic terms are a good example of terms which really go too far).

In the case of Dropbox's Terms of Service the terms were clarified to emphasize the following:

This license is solely to enable us to technically administer, display, and operate the Services.

That said, there are a couple aspects of the license which leave it somewhat open to interpretation and abuse. For starters you grant the license to Dropbox as well as "those we work with to provide the Services". The problem is that Dropbox doesn't clarify who "those we work with" are. Given that those people, whoever they are, are also granted a "worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff" is a concern, even if they too are granted the license "to the extent reasonably necessary for the Service" (whatever form that may take over time).

One of the key sentences in the license which potentially places a number of users immediately in breach of the Terms of Service is the following:

You must ensure you have the rights you need to grant us that permission.

This sentence is a statement of one of the fundamentals of content licensing, namely that you can only pass the rights you have. What this means in the context of the license itself is that users have to ensure that any licenses they have over "stuff" they store in Dropbox must have all the following license elements:

1. worldwide;
2. non-exclusive;
3. royalty-free;
4. sublicenseable rights to use, copy, distribute, prepare derivative works of, perform or publicly display.

This might seem like mumbo jumbo but some content may only be available under licenses which are more restrictive that the license in the Dropbox Terms of Service. The licenses over that content may be personal, incapable of being sub-licensed or even be exclusive to the user concerned. What this means is that the content the user stores in Dropbox and which is subject to a more restrictive license than the Dropbox license requires lack "the rights you need to grant us that permission". That means the user is in breach of the Terms of Service. Consider the "stuff" you store in Dropbox and ask yourself if you are sufficiently familiar with the licenses which may apply to that "stuff" to be able to give Dropbox the permissions it demands in its Terms of Service. If some of that stuff includes downloaded music, photographs subject to someone else's copyright or even ebooks and other documents then the odds are that that "stuff" should not be stored in Dropbox.

On the privacy side, one of the big concerns is the revelation that Dropbox not only has the decryption keys for your encrypted data uploaded directly to Dropbox (I understand that the service encrypts uploads to keep them secure) but that it will decrypt data should law enforcement officials demand it with the appropriate authority. The privacy policy includes the following provision:

Compliance with Laws and Law Enforcement Requests; Protection of Dropbox's Rights. We may disclose to parties outside Dropbox files stored in your Dropbox and information about you that we collect when we have a good faith belief that disclosure is reasonably necessary to (a) comply with a law, regulation or compulsory legal request; (b) protect the safety of any person from death or serious bodily injury; (c) prevent fraud or abuse of Dropbox or its users; or (d) to protect Dropbox’s property rights. If we provide your Dropbox files to a law enforcement agency as set forth above, we will remove Dropbox’s encryption from the files before providing them to law enforcement. However, Dropbox will not be able to decrypt any files that you encrypted prior to storing them on Dropbox.

This seems to be something Dropbox would be required to do if access to encrypted data was required by law enforcement so if security is a priority for you, I believe a solution is to encrypt the data on your drive before it is uploaded so Dropbox receives encrypted data from the start which it then applies its own encryption to. If Dropbox has to remove its own encryption, your original encryption should protect your data. I stand to be corrected about the mechanics here though.

What was perhaps most noteworthy about this controversy is how transparent the Dropbox team has been and its willingness to engage with its users and respond to their feedback. While its transparency doesn't detract from the issues in its Terms of Service and Privacy Policy, it does indicate the team is willing to discuss its users' concerns and possibly even address them.

Update: There are a number of terrific posts about the Dropbox Terms of Service. Here are two which came highly recommended in my Google+ stream in the last day or two:

• The Dropbox Doth Protest Too Much on William Carlton's blog; and
• Brady, the Terms of Service Avenger! Dropbox edition on Brady Kriss' blog.

What Twitpic's Terms of Service really say about your copyright

The Web is abuzz about indications that popular Twitter-based photo sharing service, Twitpic, recently amended its Terms of Service to give itself the right to sell your photos and videos ("your content") or otherwise take ownership of your content. This rumour has, understandably, sparked outrage and inspired a series of posts and tweets about how users are abandoning the service. Fortunately these rumours are not entirely correct although there are some curious provisions in the Twitpic Terms of Service which are worth noting.

Twitpic has attempted to clarify its position through a blog post but the Terms of Service themselves paint a very different picture from a legal perspective.

The focus of the controversy is the following extract from the Terms of Service. I comment on parts of this extract below.

Copyright

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.

By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.

To publish another Twitpic user’s content for any commercial purpose or for distribution beyond the acceptable Twitter "retweet" which links back to the original user’s content page on Twitpic, whether online, in print publication, television, or any other format, you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content.

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

You understand and agree, however, that Twitpic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. Deleted images are only accessed in the event of a legal issue.

Does Twitpic claim ownership of your content?

In a word, no. Twitpic's Terms of Service are pretty clear on this point and state the following:

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.

...

You retain all ownership rights to Content uploaded to Twitpic.

This isn't quite the end of the story though. While users retain ownership of their content, they grant Twitpic a fairly broad license over their content:

However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

Users also grant each other a license over their content:

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

While users can remove their photos from public view and the licenses granted to Twitpic and to other users will "terminate within a commercially reasonable time" after removing or deleting your content, the license you grant to Twitpic over your comments are specifically irrevocable and perpetual. This is probably due to a need to preserve potentially problematic comments for evidentiary reasons. Photos are similar stored and remain accessible by Twitpic should they be required for legal proceedings in due course. This use isn't covered by the limited license you grant to Twitpic or any specific set of permissions to store and retain the content aside from a reference to your agreement to and understanding that Twitpic may "retain, but "not display, distribute, or perform, server copies of your media that have been removed or deleted".

The Terms of Service go further to state that where your content has been sub-licensed to 3rd parties for use, reproduction or distribution prior to your license's termination "may be perpetual and irrevocable". What this means is that if Twitpic licenses a 3rd party the right to do any of those things to your content, they may retain the right to keep doing those things even after you have terminated the original license to Twitpic.

Does any of this mean that Twitpic has taken ownership of your content? No. What it does mean, though, is that once you have uploaded your content to Twitpic, you may not be able to exercise much meaningful control over those photos again. The Terms of Service doesn't mention whether the license you grant to Twitpic includes the right to exploit your content commercially so your exclusive right as a copyright owner to exploit your content commercially probably remains intact.

Curious commercial implications

While your exclusive right to commercially exploit your content remains intact, the Terms of Service seem to have co-opted some of your other rights including your moral rights as a copyright owner to be recognised as the photos' owner:

To publish another Twitpic user’s content for any commercial purpose or for distribution beyond the acceptable Twitter "retweet" which links back to the original user’s content page on Twitpic, whether online, in print publication, television, or any other format, you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content.

This curious clause contemplates commercial use of your content and requires anyone making commercial use of your content to take permission from Twitpic to do so and to "attribute credit to Twitpic as the source where" the content was obtained (my emphasis). This implies that Twitpic may have the intention of not only enabling some sort of commercial exploitation of your content (without having taken the right to do so in the license you grant to Twitpic) but also inserting itself as the beneficiary of that commercial use by, at a minimum, being acknowledged as the photos' source.

The effect of this clause, together with the carve-outs for photo retention and sub-licensed content, have the effect of eroding users' ownership in their photos in some fairly significant ways. Users retain notional ownership of their content but Twitpic takes not only an express license but extends that license implicitly by providing for these additional permissions. By agreeing to the Terms of Service you are effectively granting Twitpic a broader license than is immediately apparent from the Terms of Service themselves.

The manner in which the Terms of Service have been drafted is either indicative of poor drafting or an unfortunate attempt to seize rights from users which they do not grant in any informed capacity. The wording of the Copyright section is confusing and misleading and Twitpic users would do well to read through the Terms of Service very carefully before making further use of the service.

Update (2011-05-26):

Twitpic recently concluded an agreement with World Entertainment News Network to sell photos published to Twitpic by its users. While Twitpic insists that it will focus on photographs of celebrities, the Terms of Service don't distinguish between celebrity and non-celebrity users and enable Twitpic to sell any images uploaded to the service. While Twitpic doesn't take ownership of users' content from them (as I mentioned above), it takes a broad enough set of rights to do pretty much what it wants to do with that content.

If you are a Twitpic user, you should take a careful look at Twitpic's Terms of Service and only continue using the service if you are comfortable with those provisions. Otherwise, I recommend you look at alternatives. Twitter apps typically support a number of photo sharing services. Be sure to read the terms of service though, focus on the license provisions. I took a brief look at Mobypicture's and Posterous' terms of service and they suggest those services will be more respectful of your rights as a content creator.