The Law of Social Media (Part II)

[Part I of this series of essays can be found at this permalink].

2. Who Owns User-Generated Content?

Who owns user-generated content (UGC) posted to social media sites?  This is but one of the many vexing issues presented by the emerging law of social media, albeit one of great interest to users, corporate subscribers and social networking providers alike. After all, if possession is 9/10 of the law, then the natural, lay reaction to the question of who owns social media UGC is “the Web site, of course.”

That’s not exactly correct, however. One must  differentiate among the various forms of intellectual property (IP) law potentially applicable here.  Copyright, a matter exclusively of federal law, is available for original expressions (with or without registration), but is always subject to “fair use.”  Trademarks and their service mark complements are available for unique names, phrases and logos associated with commercial products and services, but are limited to narrow classes of expression and ordinarily — unlike copyright — must be expressly claimed.  Finally, patents are available for inventions (products, processes and methods), and give the patent holder (a/k/a patentee) the power to prevent anyone else from using the protected invention, but only arise when a patent is officially issued by the Patent & Trademark Office (PTO).

(a)  Social Media and IP Law. Each of these bodies of law, and the respective rights and obligations they create, has a different impact on social media generally.  For instance, Twitter owns a trademark on the company’s name, but was denied registration of a trademark on “Tweet.”  And in a provocative change last February, one eliciting a firestorm of user criticism, Facebook modified its terms of service (ToS) to grant the site a perpetual license on UGC even after a subscriber terminates his/her membership and removes photos and other UGC from their page. These two recent examples illustrate not only that IP law in part depends on the eye of the beholder, but more importantly that even within the social media space, there is no present consensus on just what is protected, what is public domain and what is somewhere in between.

Let’s start with the basics, then.  Copyright cannot be claimed on information, only on expressions.  So the information in a database or software application cannot be copyrighted, but the organization of a database and the actual code (whether in a scripting language or machine code) for a program are considered expressions subject to copyright.  One would not, for instance, violate Microsoft’s copyrights by designing a word processing program that replicated functionalities of MS Word, but copying of the underlying code would be unlawful. (Don’t take this too literally, however, because the issue of software patents, including those granted to Microsoft — one of present controversy in the US — could prevent another coder from achieving the same functionality under the patent law doctrine of “equivalents,” whether or not code was actually purloined.)

Unless, that is, the copying were protected by the so-called fair use doctrine, codified at 17 U.S.C. § 107.  This exception allows use of some, but not all, of an original work by another (with or without attribution), and is the basic reason why bloggers who quote portions of other posts are acting lawfully.  On the other hand, lifting the entire portion of any article, whether blogged or on a traditional media site, is typically illegal without the consent (i.e., license) of the copyright holder. Yet again, if the expression itself is already in the public domain, then courts will not uphold a copyright claim, concluding either that the author “impliedly” licensed the content, abandoned any copyright in the expression, or that the material is not copyrightable in the first instance because not original.

Putting all these basic principles together yields precisely the answer posed for social media legal questions generally in Part I of this series — “it depends.”  If a blogger structures his site with a full Creative Commons license, then nothing posted is subject to copyright because he has abandoned such a claim.  If a Facebook user posts photographs to his or her Facebook page, and makes them available to friends, a copyright claim likely would not lie against those friends if they used the photos without permission.  But, as we shall see below, these are the easy situations in which application of IP principles is (relatively) clear.

(b) Are Tweets Copyrighted? This was the question, first posed in the blogosphere by Mark Cuban in May 2009 (“Are Tweets Copyrighted?“), addressed in part in an earlier post.  To summarize, a Tweet, like any other expression, can be copyrighted if original, not public domain and not impliedly licensed.  But neither Mark nor anyone else (as far as this author knows) has addressed whether a Tweet, at 140 characters, is inherently too short, i.e., too superficial, to be deemed an original expression for purposes of copyright.  Compare, for instance, Pat Riley’s famous trademark in the early 1990s on “three-peat” while with the L.A. Lakers.  Whether the same phrase could be copyrighted is doubtful.

The point here is that social media sites cannot create rights that otherwise do not exist in the law, but can narrow or waive rights otherwise held by users with their ToS agreements.  The conclusion that because Twitter has disclaimed ownership of Tweets the tweeting user must necessarily own them is a false syllogism.  In other words, the language in the Twitter ToS to the effect that “what’s yours is yours” and that ”[the Twitter account owner] profile and materials remain yours‚” is merely prcatory, as lawyers say.  It doesn’t bind anyone and certainly cannot govern if the copyright claim is disputed in court.

Copyrightable contents must be original, an expression (not a fact or opinion) and not merely an idea. If the material you post through Twitter isn’t copyrightable to begin with, it will not mystically transform into protectable content merely by being Tweeted, and decidedly not because, as between Twitter and its users, Twitter has technically disclaimed ownership. Hence, as one writer cogently observed:

The long and short of it is this: if 90% of all Tweets are nothing more than recitation of facts. That means that about 90% of Tweets are not protectable. For the other 10%, we’re not done with you yet. It’s all in how those facts are stated.

Twitterlogical—The Misunderstanding of Ownership. [Note to author Brock Shinen: this is most decidedly fair use!!]  Also useful in this regard is an interesting blog post by PR specialist Evan Hanlon on the conflict between social media and copyright law as applied to digital music sharing.

Well, it’s not really “how the facts are stated” so much as whether the expression is original and not somehow “donated” to the public domain by posting on Twitter.  A serious argument can be made, with which I tend to agree, that Tweets inherently cannot be copyrighted, even IF original, because the very act of posting them on Twitter means the entire world can see them, without the author’s permission. So unlike other social media sites, where access to UGC can be controlled, at first blush it seems that unless one has a “private” Twitter feed, one cannot claim copyright in Tweets because the very nature of tweeting is that the tweeter intends that anyone in the world can view, link to and use his or her Twitter UGC.

(c) Tweets and Fair Use. Indeed, the underlying rationale for according Tweets copyright protection breaks down entirely when one examines fair use.  First, if copyright applies to public Tweets, then traditional media’s use of them to date — including reading or displaying in full on television — cannot be fair use because it copies the entire “expression.”  Second, the accepted practice of “retweeting” (RT) contradicts the basic principles of copyright law. Because users can (and do) retweet without limitation, it is a fair conclusion that posting a Tweet is an implied  copyright license, at least for duplication by others on the same site.  As Mashable’s Pete Cashmore noted, taking another user’s Tweets is not “copying,” but “retweeting. And I love it..”  That comes at the question from the perspective of third-parties, rather than the putative content owner, but cogently expresses the idea that application of copyright to Tweets is problematic, at best.

Now it remains true that general legal rights and obligations can be varied by agreement.  And to date, courts have largely accepted the de facto use of checkboxes to indicate a user’s “acceptance” of ToS contracts, drafted entirely by Web site owners, to which they have had no input or ability to negotiate. (California recently signaled a possible change to this assumption with a controversial decision as to software “shrink wrap” agreements, however.)  So, assume we are now dealing with photos instead of 140-character messages.  No one would argue that photos cannot be (or generally are not) copyrightable original expressions. So then — unless the act of posting itself is abandonment of a claim of copyright — ownership of rights on photos will be determined by the ToS of the social media Web site owner.

(d) Style or Substance? Here we have an interesting contrast. Facebook, as noted, has advocated a rather different view of copyright, insisting on a royalty free, perpetual license to UGC as a condition of posting — indeed, a license that survives death or withdrawal.  Absent some independent constraint, like unconscionability, those ToS licenses are valid, regardless of a user’s rights under the Copyright Act. And Facebook has a point, because once “shared” with friends on the site, photos are (or at least can be) copied to some or all friends’ pages.  Twitter, in contrast, says that UGC is always the user’s property. (As careful lawyers, however, Twitter’s counsel also include an express ToS license, even though retaining the “what’s yours is yours” language.)

This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours — you own your content.

Yet the inherently public nature of Tweets, which are “shared” with others by posting but not (except by retweeting) cross-posted as on Facebook, means that Twitter really does not need a license to the content of Tweets, since it does nothing with them other than what the user specifically intended, namely posting them on a Web page.

In the final analysis, this difference is probably more cosmetic than substantive, more about optics than legal rights.  Twitter has designs to become the real-time Web’s “utility” infrastructure, so its business model does not require, indeed conflicts with, the company’s ownership or licensing of UGC.  Facebook, in contrast, is a walled community, constantly devising ways for user to spend more time (whether or not productive or addictive) on the site.  So for Facebook, and especially because any element of a Facebook profile can be made private, including to all other Facebook members, its buisness needs licensing for the model to work.  They are different business models, driving different views of IP law.  Just like beauty, in other words, the answer is in the eyes of those with the content itself!

And, BTW, if you think the above is thorny or complex, just ponder for a moment the even more opaque question of who owns UGC after the user dies. We’ve needed living wills and medical powers of attorney for more than a decade to exert personal control critical health care decisions. Will we also need Web-proxies authorizing our medical decision-makers and heirs to access and control UGC? Yup, you know the answer — “it depends.”  A week or so after I first posted this essay, in fact, Facebook announced that it will “memorialize” profiles of deceased members if their friends or family request it.  Facebook Keeps Profiles of the Dead [AP].  That may not be the law, as of now, but it does suggest that social networks will increasingly be required as a practical matter to develop their own policies, based on the interests and needs of their users, on how to address death in cyberspace.

In Part III of this series, we explore trademarks, genericide & “Twittersquatting.”