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Twitpic T&Cs spark teacup storm

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From broad to narrow

While the new policy has much more detail, I’m not positive that it changes things all that much. I can easily imagine that the earlier “permission to use or distribute on Twitpic.com or affiliated sites” was subject to quite wide interpretation in court, if it had come to court.

Does “permission to use” exclude editing a picture (in legalese, preparing a derivative work)? Does “affiliated site” constrain re-use only to sites owned by Twitpic?

As the number of outside requests grew, or as an increasing number of newspapers or blogs decided it was okay to pick up Twitpic shots for their own purposes, it probably occurred to Twitpic that a more explicit policy was needed. Whether the new, more detailed policy grants Twitpic any new rights probably depends on the lawyer you ask.

Second, Twitpic probably does have a commercial imperative in mind. It’s now a successful and popular service – which means it’s got to pay for hosting somehow. At some point, Twitpic will want to attract investors (and prep for an IPO), and processes like that bring along lawyers with more attention to detail than the outfit apparently had when it launched the service.

The more commercially-oriented terms of service could hint at an IPO in the not-too-distant future.

Finally, there’s the increasing interaction between social media and the courts. If Twitpic is paying attention at all, it will have noticed developments like the super-injunction in the UK, and asked itself “in what ways are we exposed?”

An obvious risk would be objections or lawsuits relating to reuse of pics, in which a “normal” alteration of an image (say, pixellating a face to comply with a court order) would put Twitpic in the middle between an aggrieved photographer and a media outlet unscrupulous to alter and republish without permission.

So the change in terms of service might be as much a defense mechanism as a commercial one: a lawyer has decided that too much definition is better than too little (as they do).

Twitpic isn’t even the first to jump. TwitrPix, Twitgoo, Flickr and Posterous all have terms of service that favour the service over the photo owner to a greater or lesser degree; Mobypicture and Yfrog currently forbid resale; and Smugmug is trying to walk a tightrope between the two with a separate on-sale service.

For Twitpic, the issue isn’t whether its terms and conditions suddenly make it the renegade of the industry. It’s not: it just fell into the trap of believing that the users wouldn’t notice the change. ®

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