Thirteen Questions that TwitPic will not answer

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Wednesday, 11 May 2011 22:54

When we read the revised terms that TwitPic had imposed on their users we could hardly believe what we were reading. We were sure that some foolish person in TwitPic's legal department was just having a bad day. That it was all a dreadful mistake, the culprit would be fired for being incompetent, the terms would be corrected, and the world would be reset to 'happy' again. Sadly, it has not turned out as we hoped and outpourings of tears and rage are clogging up social media even as we write this story.

Making Contact with TwitPic

It will be easy to get all this sorted we thought. We will just scrutinse the TwitPic terms line by line and raise questions about their meaning, when TwitpPic give their answers all the bad things people are saying about TwitPic will be shown to be false and the wording will be changed to show that they were good guys. So we wrote to TwitPic, set out all our questions and said to them -

"We plan to publish a news item on the Artists’ Bill of Rights website the aim of which is to make clear what the new TwitPic terms of service mean and what they don’t mean. We hope you will be able to help with the queries we have prepared and we will refer the finished article to you to ensure accuracy prior to publication."

"Many people are clearly still unhappy with the new ToS and no doubt a great deal of misinterpretation is adding to the confusion. Our questions are based on the content of your terms of service at http://twitpic.com/terms.do and in particular the paragraphs in the copyright section."

The Questions

We focussed on the copyright section of the TwitPic terms and raised questions in connection with each paragraph. To save you referring to the TwitPic paragraphs concerned we have reproduced them here, beginning with the first paragraph in the copyright section.

First Paragraph of TwitPic Copyright Terms

All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user's content from Twitpic and upload to other sites for redistribution and dissemination.  

This is actually a great start to the copyright terms and gives a favourable impression straight off. However, this does not continue as we move on.

Second Paragraph of TwitPic Copyright Terms

By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.

We asked the following questions;

  • Who are the current affiliated sites?
  • What usage rights are they granted?
  • When a user deletes content from TwitPic is it also deleted at the affiliated sites?

Third Paragraph of TwitPic Copyright Terms

To publish another Twitpic user’s content for any commercial purpose or for distribution beyond the acceptable Twitter "retweet" which links back to the original user’s content page on Twitpic, whether online, in print publication, television, or any other format, you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content.

This is the statement that is at the heart of all the grief and outrage and gives rise to the following questions;

  • This paragraph seems to imply that TwitPic can sublicense a TwitPic user's content for commercial use without the users permission or knowledge. Is this true? Based on the strong statement made in paragraph one respecting users copyright we hope this is not your intent, yet the wording permits this interpretation.
  • Is it the case that if TwitPic gives permission for commercial use that no credit will be given to the user (i.e creator), only to TwitPic as implied by this paragraph?

Fourth Paragraph of TwitPic Copyright Terms

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

This paragraph gives rise to a number of concerns about what TwitPic (and its affiliates) will do to user photos, and in particular whether they respect the moral rights of the creator;

  • What does this paragraph mean? In the case of photos, resizing only for example?
  • Or does it permit altering the photo, merging it with others or cropping for example?
  • Does this paragraph permit TwitPic to edit user copy that could change its meaning?
  • Will TwitPic add a statement to their terms that they respect the moral rights of their users?

Fifth Paragraph of TwitPic Copyright Terms

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.

The concern here is with the wording that refers to perpetual irrevocable licenses that TwitPic may have granted to third parties, so we asked this question;

  • Can you give examples of such licenses and the reasons why they are perpetual and irrevocable?

Sixth Paragraph of TwitPic Copyright Terms

You understand and agree, however, that Twitpic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. Deleted images are only accessed in the event of a legal issue.

This gives rise to the following two questions;

  • Why are licenses granted in submitted user comments perpetual and irrevocable?
  • When it states that deleted images are only accessed in the event of a legal issue does this mean that deleted images are exempt from the perpetual and irrevocable license that applies to comments?

No Definition of the TwitPic 'Service'

We concluded our email to TwitPic by raising the following point;

"Finally, the TwitPic terms frequently refer to the Service as in "perform such content as permitted through the functionality of the Service". We have not been able to find a definition of the scope of the Service and it would help clarify the scope of the license you need if there were a definition of the 'Service'."

The Reply from TwitPic

Given the seriousness of the complaints raised about the wording and the intent of the new TwitPic terms we expected a swift response. That has not happened, in fact there has been no response from TwitPic.  The British Journal of Photography has also tried to obtain answers from TwitPic and was also met with silence.

Silence from TwitPic must mean they have no response to the mounting criticism that will justify their actions. That they know that what they have done is a 'bad thing' and are unable to admit they have they have made a mistake. That they have allowed greed to triumph over ethics. 

They are actually condemned by their own words, remember in paragraph one of the copyright terms TwitPic say -

It is not acceptable to copy or save another user's content from Twitpic and upload to other sites for redistribution and dissemination.

In effect they are saying that their own actions are unacceptable.

Users of TwitPic should migrate to a more friendly service that respects your content, while we are not yet in a position to endorse a service @PhotoAttorney has flagged up MobyPicture and @Photo_Feature has flagged up Posterous as potential candidates for your photos.

Whatever you do, don't leave your content on TwitPic.