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The Law of Social Media (Part V)

[Part I of this series of essays can be found at this permalink, Part II at this permalink, Part III at this permalink and Part IV at this permalink].

5.  Don’t Touch My Junk: Who Owns This Social Media Sh#t Anyway?

This is a presentation I made in June 2011 at the 140 Characters Conference in New York. It focuses on copyright and content ownership in social media.

Jeff Pulver: My friend the lawyer who is coming up next. I’ve known Glenn Manishin for like 15 years. He was one of the guys that worked with me and help revolutionized the world of communications. He’s focusing a lot on social and I asked him to come to the conference and share some prospective on copyright and an understanding of use of information — because what we think is ours may not always be ours. Without giving any of his talk away, Glenn please come up on stage, Glenn come on out.

Glenn Manishin: Well thanks for having me. I’m not going to give a typical lawyer talk. This is more of a rant. It’s a little bit hard to rant at 9:40 in the morning, but you’ll see that I changed the title slightly. I made it a little more family friendly for the Web but it really is: Who Owns This Social Media Sh#t Anyway.

(a) Introduction. Jeff calls this the “state of now.” Yet the law doesn’t like the state of now. The law works in history and tradition and precedent, and the most important legal issues affecting the social Web are things that are probably of no consequence to the rest of the world. That is, I’m not going to discuss how lawyers can engage in legal marketing using Twitter or Facebook, where you’ll see just a huge number of DUI defense attorneys and personal injury attorneys wanting to sign you up for their Mesothelioma cases. I’m not going to talk about which law controls because this is a global medium that affects anyone, everywhere. Your location is completely indifferent because it’s just an IP address; the courts have been struggling for 15 years with whether it’s the law of the US or the UK or Australia that controls and where you can have jurisdiction over all these people. Finally, the law doesn’t like what Jeff called a “social revolution.” The law is conservative institution, it protects vested interest, it doesn’t protect new interests.

(b) A Hierarchy of Laws. So with that intro: A hierarchy of laws. Now, obviously, the most important law is from the creator, the almighty, but here in the US it goes as follows. The Constitution is the supreme law of the land. Followed by statutes, those are laws either by Congress or the states. Then cases, decisions by judges and courts. After that contracts. A contract is a law because it decides rights between two people or two organizations. And then terms of service. You all know them, those things you don’t read and click through when it says “I accept,” but they define your rights as against Facebook, your rights as against Twitter. If you go back to 09, you’ll see there have been revolutions on Facebook periodically when the users object to new changes in terms of service, usually because some lawyer had some legalities that were’nt explained very well.

@ ha! cheers, Glenn. You were the most entertaining lawyer I've ever heard! And who doesn't love Robin Williams?
@Sean_Flynn
Sean Flynn

Well these things aren’t particularly important because God is agnostic to ownership interest — unless it’s your neighbor’s ass or tabernacles, he cares about those. The Constitution is indifferent to ownership, it protects property rights but doesn’t define what property is. Statutes are non-existent; there are no statutes about social media, even crimes like cyberbullying on Facebook, which is a very serious social problem. (I got a call last week from someone whose daughter almost committed suicide because of Facebook comments.) There are no statutes covering it, although some states have proposed it. Cases, as you’ll see are just dumb. Judges don’t get it, the lawyers who argue them don’t get it, and there haven’t been that many cases in any event. There have been a few cases about Twittersquatting — stealing of Twitter names. Contracts are rare because normally the question isn’t whether it’s me or you who owns the stuff, is it someone else? Now, if we’re going to talk about terms of service, as we will see they are irrelevant. Twitter says you own what you post. Facebook says you give us a license to do whatever we want with it, except to sell it.

(c) If You Give It Away, You Don’t Own It. Yet both instances are places where there is one simple rule. If you give it away, you don’t own it. Okay?

What is the nature of social media? It’s putting up posts or content of short duration or, if it’s a photograph like on TwitPic, content that you make available to the world. Now there are ways to limit that. As a sophisticated audience you know you can do a Twitter DM — it doesn’t grant ownership if you Tweet a picture of your shaved chest to your paramour, but it can get you into political trouble. It’s still private, you haven’t given it to the whole world. If you make your Facebook photos available only to friends no one else can look at them, but if just post something on Twitter, anyone in the entire world can read it, can download it, can embed it— they don’t need to know you, they don’t need to ask your permission.

140ConfNYC

What does that mean? That means, in my view, that you have abandoned any claim to ownership. If you post your video on YouTube anyone can download it. If you post your pictures to Flickr, you can enable a function that says download prohibited, all rights reserved. Then you could claim ownership to it because you haven’t given it to the world.

(d) AFP v. Morel. So let’s look at one case which is interesting. It’s called Agence France Presse, I think I pronounced that correctly, versus Daniel Morel. Morel was a photographer in Haiti during the big earthquake. He snapped some pictures, realized they had publicity value, put them on Twitter immediately — created a Twitter account and called it Photo Moral — and put a little copyright symbol next to it. But he didn’t go to Flickr and make them non-downloadable, he didn’t put a copyright symbol on the photograph itself and he didn’t even say, in his Tweets that went with the photographs, these are my copyrighted pictures. He just gave them away. Well, Agence France Presse, to its shame, took the pictures and put their own copyright on them and sold them to news organizations across the world. Tthat created the dilemma, who owned the pictures?

The court looked at the terms of service of Twitter and said Twitter grants a sublicense to third parties, their partners, and other viewers to look at photos but it doesn’t give them the right to publish themselves. Therefore, the terms of service don’t extend to Agence France Presse. Well, that’s silly because terms of service can’t create ownership rights. They could recognize them but if I have a Web site with you, I can’t decide who owns things for third parties. I don’t have any deals with the third parties. And the court never addressed the more important issue. The one I just talked about. Whether there is an implied license or have they abandoned ownership. Again, if Morel would have put this stuff on Flickr, right, or put a copyright watermark on it, there would be no question, but he gave it away to the world. So, as you can see, he took his pictures down. Smart man.

(e) Social Media Law & the French. It all gets into the French. Now as Gore Vidal said — I think this is a great quote — “It is a nation devoted to a false hypothesis on which it then builds marvelously logical.” Well whether or not French culture is dead, I think this case epitomizes some bad things about France. They have outlawed Islamic head coverings, they insist that Napa Valley can’t use the word champagne, they have a three-strike law for peer-to-peer downloaders. Meaning that if you download three files you could have your Internet service  terminated unilaterally. They criminally prosecuted Yahoo as a war crimes defendant for allowing Nazi memorabilia to be sold on a Yahoo auction site — something that is absurd in American jurisprudence — and then they came here and tried to enforce the judgment against Yahoo. The US Court said no way. And of course you have the incident that I just told you with Agence France-Presse. The biggest news organization in France, just takes something that may or may not belong to them and decides that they own it.

If I’m right, that it doesn’t belong to anyone, they’re clearly liable for having put their copyright on it, but that’s not what the court was deciding. The court was deciding whether they enjoyed an ownership right because of Twitter. So, the bottom line is, that if we rely on the French to decide who owns our social media shit we are in big blan#&y trouble.

(e) English Pig Dog. With that I want to end up with my favorite quote about France. It’s from Robin Williams, courtesy of my son, who loved it when he was about six years old. He would be very proud of me by saying that with regard to the French, “I spit in your general direction, you English pig dog!”

In Part VI of this series, we will explore the effect of social media on employment law, including the privacy rights of employees. More to come!

 

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