There’s been some hoopla the last couple of days about crazy Twitpic terms of service. I thought that it was all pretty lame, and that everyone was in a premature panic and just not understanding what Twitpic was really saying in their TOS. So I decided to sit down and explain it to everyone. I figured that the first place to start was with reading the Twitpic TOS itself and in its entirety.
Now that I’ve staunched the bleeding of my eyes and soul, I can begin.
Holy wow, that is a poorly worded document. I think that Twitpic’s heart is in the right place, but no one would know it because of their awful document!
Most of the complaints I’ve seen have been about the copyright ownership, licensing and sub-licensing terms, which were changed around May 5th, and re-changed on May 10th, with the supposed result of alleviating the confusion. I don’t think that worked.
What Twitpic wanted to do, as far as I can tell, is fairly reasonable. What it wanted to say was:
- If you upload stuff to Twitpic, then Twitpic may distribute and display it, and may let other people distribute and display it. This means that Twitpic can host the image on its site, let other people look at it, can send it out to people who view Twitpic content via software using Twitpic API. These are all things reasonable people expect Twitpic to do with uploaded content, because that’s what Twitpic’s for.
- Twitpic wants this license to be non-exclusive, which means that you can give other people rights to use the same content, and it means that you also keep the right to use the content.
- Twitpic will let you terminate your license to Twitpic to use your content (except your comments), but says that sub-licenses “may be” irrevocable, which means you can’t take it back. This is not for any nefarious purpose, but probably in there just because it is impractical for Twitpic to halt the distribution and copying of the digital picture you’ve uploaded once it gets out into the internet. People, such as Twitpic’s downstream users and partners, tend to get cranky when they think they have a license to content and that license is suddenly revoked.
- Twitpic wants to prevent snafus like Agence France Presse v. Morel from happening. In that case, AFP licensed some pictures of the aftermath of the Haiti earthquake and used some of the images, and licensed some of them through Getty images. As it turned out, however, the pictures at issue had been taken by a photographer who had uploaded them to Twitpic, and hadn’t authorized AFP to use or sub-license the photos. AFP claimed that Twitpic’s Terms of Service gave them a license to use and sub-license the photos. Some of the new language in the Twitpic TOS is clearly directed at that scenario – Twitpic is saying that the only legitimate (and legal) way to access content hosted on Twitpic is through the Twitpic interface or Twitpic APIs. The TOS is trying to say that content obtained through Twitpic can only be re-distributed through Twitpic, unless there is specific express permission. Unfortunately, the TOS is worded so that it sounds like once a user uploads their own content to Twitpic, they can then only distribute it through Twitpic. I think the TOS as written allows a user to upload content to Twitpic, and then to separately license the content to, say, Getty Images, provided that Getty doesn’t gain its access to the content through Twitpic. The photographer would have to send the licensed content directly to Getty. And that doesn’t seem too crazy to me…
On the other hand, there are some things in the TOS that don’t make sense, and I can’t rationalize away. For example, Twitpic will not actually delete anything you tell them to delete, it will just make it unavailable to the public. But they say that the “deleted” but retained content “are only accessed in the event of a legal issue.” What exactly is a “legal issue”? Court order? Lawsuit? DMCA takedown notice? Also, I seriously doubt that. They’re never accessed for, say, maintenance or troubleshooting? Jus’ sayin.
So, like I said: I don’t think that, in general, Twitpic is being a jerk about their TOS. I don’t think they’re making a land grab, like some people have claimed. I think they just don’t know how to write a terms of service, and for some reason haven’t hired someone who does know. It is not that expensive, really. Promise.
Screwing up a terms of service or a privacy policy can set off a social-media chain-reaction that can cause serious harm to a fledgeling project’s chances of getting going (just look at Buzz), and can hurt an established service that has competitors. So the content of your site or service policies is hugely important even outside of a courtroom – how much of a jerk or a buffoon you end up looking like can have serious consequences for your public relations and marketing. So do it right the first time.
For anyone who is interested, below is a printout of the Twitpic TOS from today, with some comments by me. This should not be taken to be legal advice for Twitpic or for anyone else. Also, I don’t claim that this is a complete analysis of the TOS. Just some first pass highlights.