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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?

wikipedia, legal authority and facts

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I was in the middle of writing yet another half-finished post (this one on Groupon, in case you were wondering) when I was distracted by a tweet from Barry Sookman on how a court determined that Wikipedia is not a legal authority in US courts, which then pointed to a brief blog entry written by Peter Vogels. In it, he concludes with this statement:

Even though the Smithsonian Institution is now teaming up with Wikipedia that does not validate Wikipedia postings for the Courts. As time moves on Wikipedia may be a reliable source for the Courts, but when is still unpredictable.

which I interpreted as disappointment with the court’s ruling, at least as far as Wikipedia goes. This piqued my interest a bit, so I took at look at the order (PDF – which Mr. Vogels was kind enough to link to in his entry). The operative paragraph was set out in the following footnote in the order:

4The court notes here that defense counsel appears to have cobbled much of his statementof the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. Compare Supplemental to Motion for New Trial (DN 199)at 18–19 with http://en.wikipedia.org/wiki/Strickland_v._Washington (last visited Feb. 9, 2011).The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. Thecourt also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). See also In re Burghoff, 374 B.R.681 (Bankr. N.D. Iowa 2007) (holding that counsel’s plagiarism violated identical provision of Iowa Rules of Professional Conduct). Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

This, in turn, was a footnote to the following sentence in the order:

The defendant claims that she must be granted a new trial because the representation she received was so deficient as to violate the Sixth Amendment to the United States Constitution.4

I’m not sure the statement of the court above  is necessarily as unfortunate as it sounds. Legal authority is usually used to describe “reporters” – specific publications that publish court decisions. Some are “official”, as in they are approved in some way by the courts, while others, which are still accepted by the courts, are not. These reporters, as far as I am aware, take great care to ensure that decisions are published completely and accurately. They are typically well known by lawyers and judges, so that anyone given a reference to a particular case using a particular citation will be assured that it will be identical, down to the page, of anyone else looking at that citation. For example, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 will allow any lawyer or judge to look up the case described in a specific reporter.

If I’m interpreting the above correctly, the judge seems to be suggesting that the lawyer in question basically tried to rip-off arguments in another case without acknowledging that they came from another case (or rather the Wikipedia entry for the case) – at least for all of the footnote other than the last sentence.

That last sentence, however, I think speaks only to legal authority in the sense I’ve described above. Or at least I hope it does, because that would be a sensible thing to say – after all, the full text of decisions are not published on Wikipedia but rather summaries which are editable by users. And when it comes to citing past decisions as the basis for coming to a new judicial decision, it is probably important to have some degree of reliability, immutability and consistency for your sources. Or perhaps stated simply, lawyers shouldn’t be providing a link to Wikipedia when they’re citing a case as precedent – they should be citing authoritative reporters.

This should be distinguished, I think, from more general use of Wikipedia by the courts to refer to factual matters, which an article in the New York Times summarized the current perspectives quite well. The article in particular noted a case where a US court had rejected references to Wikipedia:

When a court-appointed special master last year rejected the claim of an Alabama couple that their daughter had suffered seizures after a vaccination, she explained her decision in part by referring to material from articles in Wikipedia, the collaborative online encyclopedia.

The reaction from the court above her, the United States Court of Federal Claims, was direct: the materials “culled from the Internet do not — at least on their face — meet” standards of reliability. The court reversed her decision.

Oddly, to cite the “pervasive, and for our purposes, disturbing series of disclaimers” concerning the site’s accuracy, the same Court of Federal Claims relied on an article called “Researching With Wikipedia” found — where else? — on Wikipedia. (The family has reached a settlement, their lawyer said.)

The article does go on, however, to identify a number of instances where Wikipedia had been accepted by other courts, sometimes for rather important facts, which has been criticized by some:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

while others have been less harsh:

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

I guess my point in all of the above is that I’d be inclined to agree that Wikipedia shouldn’t be used at all to cite legal authority (assuming of course I’m properly interpreting what the court meant), without of course discounting the desirability of perhaps replacing (or supplementing) the rather antiquated, primarily paper-oriented system of legal authority with more modern, internet-accessible means of publication. Conversely, I would think that references to Wikipedia for factual matters should perhaps be a bit more flexible, and I don’t think this particular order  rules that possibility out.

how not to use social media

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It never ceases to amaze me how some folks manage to mess things up when it comes to social media. I could perhaps understand it a few years ago, when Facebook and LinkedIn weren’t all that popular just yet, and the former was more or less limited to students. But these days, I would have thought that people would know better. And to some extent they do. For example, as compared to just a few years ago, most people I see on Facebook have taken the effort to turn on at least some of the privacy settings, which hasn’t always been the case.

In any event, apparently we now have another first – the first person to have been convicted for a tweet. The prize goes to Mr. Paul Chambers, for this lovely tweet: “Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together, otherwise I’m blowing the airport sky high!”

He was convicted of sending a menacing electronic communication. Fortunately for him no jail time was involved, though he was fined and apparently also lost his job as a result of the prosecution.

Social media, privacy, personal information and one’s communications through them are, collectively, a very complex topic. I’m sure that if you wanted to, you could spend a whole day (or longer) teaching people how to navigate Facebook’s privacy settings. Or LinkedIn’s. That being said, I usually try to keep my advice on using social media very simple: Before you post, tweet, blog or send, imagine what would happen if whatever it is you’re sending out will appear on the front page of the New York Times. Would you be comfortable with that? If not, then perhaps keep it to yourself. Or share it with close friends or colleagues over a coffee or a beer.

I imagine this might be of a bit of an oversimplification, and perhaps even rather obvious. Also, if someone already lacks any sense of judgement, it certainly won’t help (then again in that case nothing likely will). And it certainly won’t help you if you’re, say, someone with unusual predilections who can use only social media as an outlet. All that said, I find it to relatively good rule of thumb. Also a lot quicker than taking a couple of hours each time Facebook, once again, adds another 30 settings to its privacy controls.

Wikiality

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Interesting post on the Wellington Financial Blog about “Wikiality” – the practice of taking stuff in Wikipedia as the truth, or, to quote: ““a reality where, if enough people agree with a notion, it becomes the truth.”

JN notes that Wikipedia has been cited by the courts, and this is reason for concern. A snippet:

The practice poses two problems:

  1. The references may be inaccurate; and
  2. Even if accurate, the references are subject to change at any point in the future, making it difficult for any future decisions to refer back to the original or understand the context in which it was made.

Given recent reports of Microsoft offering to pay individuals to make changes to certain Wikipedia articles in which they have a vested interest, the credibility of the site as a definitive reference source again comes into question.

A few of my colleagues at the firm also expressed bemusement when a recent case in Ontario (don’t have the citation, sorry) also cited Wikipedia.

I am quite a big fan of Wikipedia. It is, I think a rather useful and handy tool to refer to from time to time. Do I take it as the gospel? No. Would I use it if I were trying to concoct an antidote for a poison that was about to kill me? Probably not. Would I cite it in a legal research paper? Possibly. In fact, quite likely.

Although Wikipedia is by no means without its weaknesses, it also has its strengths. Sure, there is a possibility of inaccuracy. But then again, isn’t something less likely to have inaccuracies if it is reviewed (and edited) by more eyes (and more minds)? Isn’t it more likely that if there is a dispute about what is and isn’t correct, it will come to light, just like the Microsoft incident?

And what source, can it be said, is free of inaccuracies? Certainly not The New York Times. Although the Gray Lady is quick to point out that it was “deceived” by an errant reporter, it is less quick to reflect on the fact that it published fabricated stories. That of course is the clearest example, but history is rife with examples of inaccurate or misleading stories in the press. Less clear, of course, is media bias. And one only needs to refer to Manufacturing Consent. I don’t necessarily agree with all that book has to offer, but it certainly provides some food for thought.

What about scientific publications? Hmmm. Well. Again, truth is quite often relative. The clearest examples, are, of course, outright fabrication. Nonetheless, Dr. Hwang Woo-suk’s paper on producting the first cloned stem cell line was considered the truth for several years, until he was discredited. And more generally speaking, is it not true that, in the world of science, what is considered to be the truth is what most scientists believe to be true? Is that not the system of peer review? A great read on this topic is The Structure of Scientific Revolutions (as an aside, its also the book that introduced the phrase “paradigm shift” into popular parlance). I won’t bore you with details, but suffice it to say that, at the end of the day, science, at least in concept, may not be that far from wikiality.

My point isn’t necessarily to skewer existing sources of “truth” but rather to point out that such sources aren’t necessarily more reliable or accurate, or less fallible, than something like Wikipedia.

And as for things changing? Make a copy.