Interpreting Social Media Terms of Service


Social media can be a powerful tool for all kinds of messages—including citizen-level accounts of breaking news. Huge, newsworthy events on both national and international levels have broken on social media sites such as Twitter. And, for the most part, this kind of in-the-moment, 140-character relay of information has been a boon to the consuming public. However, confusion over social media terms of service (TOS) has resulted in legal battles over content on these sites.

The most notable example of this comes in the form of several now-iconic photos that were posted on Twitter by a photojournalist, Daniel Morel, during the earthquake that devastated Haiti in 2010. The photos were placed on a newswire, Agence France-Presse (AFP) without payment to the photojournalist, who then sued the newswire for copyright infringement. After several years of litigation, the court has finally issued an opinion, holding in favor of the photojournalist.

The crux of AFP’s argument is that the Twitter TOS granted it a license to take and use any photos posted on the social media site. In a Jan. 14, 2013 opinion, the district court judge granted the photojournalist’s motion for summary judgment that AFP and the Washington Post are liable for copyright infringement, and stated: “Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the Twitter TOS.”

However, this opinion does not mean that Morel will recover the millions of dollars that he is asking for, as the judge rejected the photojournalist’s arguments regarding statutory damages. Morel argued that each individual reprinting of the images constituted a separate infringement that AFP and the Post are liable for. The judge rejected this, explaining that it is the “violative act” that constitutes infringement. In this case, that means the act of copying the image from Twitter, not the further distribution of copies.

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