Original URL: http://www.theregister.co.uk/2011/06/01/twitpic_terms_and_conditions/

Twitpic T&Cs spark teacup storm

Your pics are our pics: so what's new?

By Richard Chirgwin

Posted in Bootnotes, 1st June 2011 00:07 GMT

Twitpic has sparked outrage among the Twitter user community by changing its terms and conditions.

Sometime early in May, the photo-sharing site replaced its broad (and ill-defined) copyright statement with a new, more detailed policy.

Formerly, the heart of Twitpic’s copyright was a single sentence: “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites.” [Our emphasis in italics - El Reg.]

The new policy adds a lot of detail, and has been interpreted as turning Twitpic into yet another outfit that crowd-sources free content that it can then onsell at a profit. The key items are:

“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.”

A million sharp-eyed bush lawyers note that this means if someone wants to re-use something from Twitpic in, for example, a newspaper, they need to ask Twitpic, but not the original poster.

The second is this:

“…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.”

In other words, Twitpic can do what it likes, including editing, with posted photos without asking the original owner’s permission.

The reaction has probably taught Twitpic – and other photo-sharing services who are probably looking at their own T&Cs, for reasons I’ll discuss in a moment – a valuable lesson. If you’re going to change the terms of service, don’t try to do it on the quiet. And make sure you’re willing to explain your reasons in public, rather than have others explain it for you.

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. ®