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who owns your tweets? (@novaspivack)

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Thought I’d tackle a relatively short and easy one today – it’s been a long, long week. Anyway, I noticed a tweet from @novaspivack (via a retweet by @mathewi) asking “Legal question: Who owns the copyright to your tweets, and who has the ultimate right to decide who else can access them?”

Under both the US (§201) and Canadian (s. 13(1)) Copyright Acts, the first owner of a work in which copyright subsists is the author of that work. In other words, you write it, you own it. So that’s your starting point. You write a tweet, you own it.

There are also exceptions to the rule that an author owns the work. For example, if you author something in the course of your employment, your employer will be the first owner of the work absent an agreement to the contrary. So, for example, if you tweet as a part of your job, then copyright in your tweets are owned by your employer, not you, unless you’ve struck a deal saying otherwise with your employer. In the US, this is often referred to as a “work made for hire” (sometimes contracted to “work for hire”).

You can also agree, up front, with a contract with someone else, that a work that you author will be owned by them. Subject to the usual legal niceties of creating a legally enforceable contract (and some caveats, which I won’t get into here), that means that what you write will be owned by that other person. So, for example, you can agree under a contract to tweet for someone else and that those tweets will be owned by that other person.

This can also be done after the fact. You can author a work, and then sell it to someone else under a contract. Then they’ll own it. This could be done with tweets. So for example if a publisher wanted to compile your past tweets into a book, you could sell them the copyright in those tweets, and they’d be free to do what they want with them.

Along similar lines, you can also grant licenses to work you create. The granting of a license means that you give someone else some rights that only you would, in the absence of that grant, be entitled to exercise. So, for example, you could grant someone the right to publish a book of your tweets, in paper form only, in North America. Once you grant that right, then they can publish that book without infringing your copyright.

The reason I mention licenses is because there is a specific term in the Twitter terms of service pursuant to which users of Twitter grant Twitter a license. Here it is, for your reading pleasure:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

“Content” basically means your tweets. So you keep ownership of your tweets. BUT, you grant a license to Twitter to do a whole bunch of stuff with it. These rights constitute, more or less, anything you as the owner could otherwise do. It’s quite broad. Very broad, in fact. Substantively, really the only difference between this and giving up ownership completely is that you can continue to use your tweets in other ways. So for example if you want to put your tweets on Facebook, or your blog, or sell a book of your tweets, you would be free to do so. Then again, so can Twitter, if it wanted to.

All of this of course assumes that the terms of service are enforceable. There are arguments for and against, but that’s a bit beyond the scope of this post.

So the second part of the question is who has the ultimate right to decide who else can access them. While, as you probably know, Twitter does allow you to restrict who can see your tweets, they do have the right to give access to whoever they choose, and completely disregard your settings. I didn’t see anything in their terms of use that imposed a contractual restriction on them to honour restricted user settings. Then again, I haven’t exactly read it word for word.

I imagine there might be situations where you could be able to terminate the contract, even though the terms of service don’t expressly provide for that, but I imagine it would be challenging to suggest that the license rights granted to past tweets would terminate. Interestingly, the rights granted under the license language above aren’t characterized as “perpetual” (i.e. forever), which they often are in such documents.

It may also be worth mentioning that Twitter can control access to your tweets to the extent it involves Twitter. Just to make this clear, they have this provision in their terms of use:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

So, for example, they can pull all of your tweets off Twitter, so that no one can see them anymore. However, that doesn’t preclude you from, for example, reposting all your tweets to Facebook or a blog, if you wanted to, and assuming you retained a copy of them.

Of course, lawyers tend to argue about everything and anything, so I’m sure someone out there may be inclined to disagree with something I’ve written above. Which is fine. And of course the usual – not legal advice, no lawyer-client privilege, no obligation or liability. Just in case you live in the US.

Fascinating stuff, isn’t it?

chrome a windows killer? i doubt it

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Read an article in eWeek that left me scratching my head a bit. The nub below:

Google may be treading lightly with Chrome now, but the browser, combined with Google’s search and Apps, could end up being a big threat to Microsoft Windows’ market share.

Then later:

When Google accidentally leaked its Chrome comic book Sept. 1, reporters and analysts, including yours truly and my colleague Joe Wilcox, argued that Google could make Chrome the premier Web operating system by combining it with its market-leading search engine and increasingly popular SAAS (software as a service) applications. This would eventually constitute a threat to Windows.

And that would spell doom for Microsoft. It’s one thing to squeeze Microsoft out of the Internet game by dominating search and Web services. It’s another entirely to come after the software giant’s core operating system business, wielding the Web as your platform.

Must admit I have a lot of trouble seeing that, as I would have thought in order to supplant Windows, it would need to be gone, and to go from a browser that sits on an o/s to replacing the o/s seems to be a rather large leap. A huge leap, actually.

What they’re suggesting might happen is already a possibility today. There is definitely something that can supplant Windows altogether, and provide access to all the web-oriented apps, etc. that Google offers. Its cheap (sometimes free), stable and has pretty good UIs – in fact, a selection of UIs and different flavours. Its called Linux. However, for a variety reasons, it hasn’t kicked Microsoft’s ass yet (at least on the desktop – there are a few areas where it definitely does, such as web and other server functions).

To suggest, then, that, because Google has come out with a browser, that that will lead to the supplanting of Windows seems, IMHO, to be a bit far-fetched. I’m not suggesting that Google wouldn’t have the wherewithal to try to go after the desktop. They may do so. Though I’m not sure if they’d want to – they have a pretty good business model already…

Anyway, if and when they do something like that it will be so much larger an undertaking than Chrome that the links between that and Chrome would be tenuous at best, other than possibly bundling Chrome within whatever o/s they create.

Even possibly on the application front, I can see Google putting some pressure on MS, and how this might tie with Chrome. But not the o/s on which the whole thing runs.

So I think for the time being, Bill and Steve probably don’t have much to worry about with Chrome’s introduction, at least when it comes to the o/s business (IE on the other hand, is another matter altogether…).

so much for the paperless revolution

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Lexology had an interesting story that serves as a really good reminder that sometimes, despite all the great things about modern technology, plain old paper may sometimes be the best way to go.

What happened? Well, to make a long story short, the US Federal Trade Commission inadvertently disclosed a large amount of information that was filed with the FTC that should have remained confidential. To wit:

The mistake made by the FTC was basic. In preparing its brief for filing, FTC staff wrongly assumed that the metadata in its word processing file would not migrate upon direct conversion from native format to portable document format (.pdf). In particular, they wrongly assumed that using Microsoft’s “Highlight” (or “Borders and Shading”) tool to black out text actually removed the text from the file’s contents. It does not. It “covers up” the text, but the text itself remains in the file, fully searchable and available for copying. The resulting .pdf appears at first glance to contain only black boxes in place of the redacted content. That content, however, is present in the .pdf file and can be easily revealed either by copying and pasting the blacked-out text into a word-processing file or an e-mail message or by viewing the .pdf file in a reader such as Preview or Xpdf.

Its one of those stories that makes you want to laugh and cry at the same time. The laughing because its easy enough to think “What kind of idiot would do that?” because the error was (at least for most readers of this blog) rather obvious. The crying because, if you give it some thought, there are instances that this could very well happen to even the most technically sophisticated of you – not just with PDFs, but any number of other forms of digital documents, communications and storage – and in any number of ways. The bottom line is that when things are put into digital form, they are often harder to get rid of. Its something well worth keeping in mind.