Pinterest's amended terms still leave users exposed

Pinterest (I am going to be a little lazy in this post and refer to "Pinterest" when discussing both the site and its creator, Cold Brew Labs) has been in the spotlight quite a bit lately due to its terms of service as well as content creators' concerns that their content is being shared without their permission on the service by its enthusiastic users. I wrote about the copyright implications in my post titled "Is Pinterest a den of copyright thieves?" and about the potential liability users face in a subsequent post titled "Pinterest's hidden threat to its users". Pinterest announced updates to its terms recently and the new terms go into effect next week. Unfortunately the new terms still leave users exposed to potentially substantial liability simply by using the service."

Current terms (published on 29 March 2011)

Much of the focus on Pinterest's new terms of service (which go into effect on 6 April) is on the original content license users grant to Pinterest which includes the right to "sell" "Member Content". The two key clauses here are the definition of "Member Content" and the original license clause which state the following (I highlighted the problematic terms in bold):

"Member Content" means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.

and

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.

The effect of these provisions was to enable Pinterest to commercially exploit Member Content published on the site on the basis that users grant Pinterest. This license is granted automatically and the way Pinterest attempts to ensure that users are legally authorised to grant this license is through this acknowledgement or warranty:

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.

This sort of warranty is a common mechanism in website terms and short of having each user prove they are entitled to post each item to the service (totally impractical), this is how site providers tend to protect themselves from a user submissions perspective.

One of the significant challenges in these terms is that users are potentially liable for substantial damages simply by using the service. This is as a result of the liability clauses in the terms. I won't go into this in detail here as I have already done so in my post titled "Pinterest's hidden threat to its users" which I recommend you read before continuing with this post.

The new terms (6 April 2012)

The new terms deal with content a little differently. Firstly, the definition will change to "User Content". This isn't as well defined as "Member Content" is in the current terms. It is defined or framed as follows (I highlighted the relevant sections):

Your content. Pinterest allows you to pin and post content on the Service, including photos, comments, and other materials. Anything that you pin, post, display, or otherwise make available on our Service, including all Intellectual Property Rights (defined below) in such content, is referred to as “User Content.” You retain all of your rights in all of the User Content you post to our Service.

Framing "User Content" this way does two things. It streamlines the definition of User Content and it explicitly states that users retain the rights they have in the content they post. This means that Pinterest has no ownership claim over your stuff which you post to the site or, implicitly, anyone else's. This also addresses a very common misperception we see in media coverage of site terms of use: Pinterest doesn't claim to own your content. In fact, I don't recall ever seeing site terms where a provider claims ownership of user content. The problem lies more in how broad the license is that users grant these service providers. The license users grant Pinterest is the following (I've highlighted some interesting provisions):

• How Pinterest and other users can use your content. Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users. Nothing in these Terms shall restrict Pinterest’s rights under separate licenses to User Content. Please remember that the Pinterest Service is a public platform, and that other Users may search for, see, use, and/or re-pin any User Content that you make publicly available through the Service.
• How long we keep your content: Following termination or deactivation of your account, or if you remove any User Content from your account or your boards, Pinterest may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. Furthermore, Pinterest and other Users may retain and continue to display, reproduce, re-pin, modify, re-arrange, and distribute any of your User Content that other Users have re-pinned to their own boards or which you have posted to public or semi-public areas of the Service.

What is noticeable is that the new terms omit the reference to "sell" and the new license is not irrevocable or perpetual. It is still royalty-free and "sublicenseable" so Pinterest is not liable for any royalties payable for publishing User Content and can sub-license the content to another party. This latter requirement may be intended more to enable the service to function more than a desire to move content around. Any other party that republishes the content as part of the overall service would need the right to do so. This may include Pinterest's hosting provider, 3rd party services and so on.

A related term in the new terms is "Pinterest Content" which is framed as follows:

Pinterest Content. Except for User Content, the Service itself, all content and other subject matter included on or within the Service, and all Intellectual Property Rights in or related to the Service or any such content or other subject matter (“Pinterest Content”) are the property of Pinterest and its licensors. Except as expressly provided in these Terms, you agree not to use, modify, reproduce, distribute, sell, license, or otherwise exploit the Pinterest Content without our permission.

A big change in the new terms is the introduction of an Acceptable Use Policy which more fully addresses how users can make use of the service. Two of the prohibitions include posting any User Content that –

infringes any third party’s Intellectual Property Rights, privacy rights, publicity rights, or other personal or proprietary rights

and

contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships

The new terms define "Intellectual Property Rights" as follows:

Definition of Intellectual Property Rights. When we refer to “Intellectual Property Rights” in these Terms, we mean all patent rights; copyright rights; moral rights; rights of publicity; trademark, trade dress and service mark rights (and associated goodwill); trade secret rights; and all other intellectual property and proprietary rights as may now exist or hereafter come into existence, and all applications for any of these rights and registrations, renewals and extensions of any of these rights, in each case under the laws of any state, country, territory or other jurisdiction.

The new terms make it pretty clear that users are only to publish content they have the rights to publish, whether this be under a license granted by the content creator (most Creative Commons licensed content, for example, would probably be fine) or where there are copyright infringement exceptions (I wrote about this in my first post titled "Is Pinterest a den of copyright thieves?"). The terms also include fairly extensive provisions intended for content owners and which detail Pinterest's interest in protecting their rights, preventing efforts to circumvent the so-called "no pin" tag content owners can use to block efforts to pin their content as well as to report any copyright infringement.

What Pinterest hasn't changed much are its liability protection clauses. As with the current terms, the new terms include an indemnity clause which states the following:

You agree to indemnify and hold harmless Pinterest and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), arising out of or in any way related to (i) your access to or use of the Services or Pinterest Content, (ii) your User Content, or (iii) your breach of any of these Terms.

The terms also include a liability limitation clause which reminds users that "THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, PINTEREST CONTENT, AND USER CONTENT REMAINS WITH YOU AND YOU USE THE SERVICES AT YOUR OWN RISK" (among other things).

Actually there is one significant change from the old indemnity clause to the new one. The old (or current) clause requires users to "defend" Pinterest. That change relieves users of the potential responsibility for filing court papers in Pinterest's defence should it be sued. What the new indemnity clause doesn't do is relieve users of the potential responsibility for any damages Pinterest may be ordered to pay, any costs it may incur or other penalties which flow from claims lodged against Pinterest in respect of –

• "your access to or use of the Services or Pinterest Content";
• "your User Content"; or
• "your breach of any of these Terms".

There is one important omission in the indemnity. The indemnity doesn't require your "use of the Services or Pinterest Content" to be unlawful or to infringe a 3rd party's rights, necessarily. It potentially includes a situation where your use of the "Services or Pinterest Content" is legitimate and Pinterest's isn't. This could be possible if your use is regarded as a "fair use" (this has a specific legal context, see below) and Pinterest's may not be because it's a commercial service, for example.

What does this all mean for you?

The bottom line is that you should only pin stuff to Pinterest which you are licensed to pin or which you can pin under a copyright exception like "fair use" as applied in the State of California (these terms are governed by the "internal substantive laws of the State of California"). Any other publication or use of the service and content published on Pinterest could be a violation of someone Intellectual Property Rights and a breach of the terms of service. If Pinterest is sued for that and you are the unlucky user who did the infringing, you could be on the hook. This could be regardless of whether you acted lawfully when you used Pinterest.

In other words, heed the liability limitation clause's admonition:

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES, PINTEREST CONTENT, AND USER CONTENT REMAINS WITH YOU AND YOU USE THE SERVICES AT YOUR OWN RISK.

Add nutmeg to your Terms of Service and whisk briefly

One of my contacts on Google+, York Zucchi, pointed me to his website terms and conditions on his site which I had to share. The terms (well, this is really a liability disclaimer, not a complete set of website terms and conditions) are somewhat simple and not appropriate for all uses but they are a fun read, nevertheless:

IMPORTANT INFORMATION/DISCLAIMER

This website may contain information that is unsuitable for overly sensitive persons with low self-esteem or no sense of humour (you need a great sense of humour to do business in Africa). Any dissemination, a distribution or copying of this website is not only authorised (either explicitly or implicitly) but actively encouraged though not including the source constitutes an irritating social faux pas. If you have landed on this site by mistake we would be curious what you were trying to find online. You are welcome to stick around and read it, even if we didn’t mean for you to visit it. Unless the word absquatulation has been used in its correct context somewhere other than in this warning, it does not have any legal or grammatical use and may be ignored. We take no responsibility for non-enjoyment, either humorous or of informative means, of this website. In the event that you do get the humour herein contained then please note that we take no responsibility for that either. Nor will we accept any liability, tacit or implied, for any damage you may or may not incur as a result of reading, or not, as the case may be, from time to time, notwithstanding all liabilities implied or otherwise, ummm, shucks, where were we.., no matter what happens, IT's NOT, and NEVER WILL BE, OUR FAULT except where we made silly promises that we should not have. No animals were harmed in the writing of this text, although the yorkshire terrier next door is living on borrowed time. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft: However, by pouring a complete circle of salt around yourself and your computer you can ensure that no harm befalls you and your pets. If you have read this whole paragraph in error, please add some nutmeg and eggs and place it in a warm oven for 40 minutes. Whisk briefly and let it stand for 2 hours before icing.

Thanks for the link, York! I particularly like this line:

However, by pouring a complete circle of salt around yourself and your computer you can ensure that no harm befalls you and your pets

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.