Owning Your Tweets: Twitter's Terms of Service, Part 2

Social media and the phenomenon of user generated content may be creating a new kind of ownership, one under which an author can control certain artistic and moral rights in her work, but not certain derivatives, and not information that is derived or aggregated from the work.

In the near term, key features of this new kind of ownership are ambiguous.

For example, the license users grant Twitter under Twitter's new Terms of Service is of no specified duration. Does that mean Twitter's rights in user content are perpetual, or revocable by the user?

In a blog post yesterday, Evan Brown argues that the lack of a specified duration may mean, under legal precedent, that the license is terminable at the will of the Twitterer. From this, he reasons that Twitter may be leaving its third party developers high and dry:

"What happens . . . [when] the individual user revokes the license to Twitter? [The] cached copies out there in the possession of third party developers all of a sudden become unauthorized, because Twitter no longer has the sublicensable right to allow the tweets’ copying and redistribution by others."

This cannot be what Twitter intends. Jeremy Freeland made the point in his comment yesterday to my earlier post on Twitter's Terms of Service:

"I'm assuming they'd prefer the license to be perpetual - if they're going to syndicate content, they need to be able to pass down rights to their sub-licensees after the relationship with the user has ended. But if you stop being a Twitter user, then since the terms of use would no longer apply, would the license grant end as well? Interesting ..."

Two months ago, TechCrunch in a series of posts published various internal Twitter documents, and in one of these posts, it published what it identified as notes from a Twitter management meeting held on June 9, 2009. One page of these notes speak to Twitter's possible objectives in publishing new Terms of Service.

These Twitter management meeting notes state that "we want full license to the content (including commercial use), with a few exceptions," and that Twitter would "throttle" the sublicensing of user content through more restrictive API license terms. Presuming the notes reflect company policy, isn't it fair to surmise that Twitter thinks, hopes or aims to have a broader license in user content than it means to give to third parties?

However, as a matter of public relations, Twitter cannot be seen to claim a perpetual license in the content of a user who has deleted her account.

For comparison, here's how Facebook handles the license duration question in its Terms:

"[Y]ou grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

At first read, the statement that Facebook's license ends when you delete your account seems bold (and I imagine it is comforting to users concerned about control of their content). When you parse the complete sentence, though, you see that termination is conditional; and when you think about it for a second, you realize the condition is not one that is ever likely to be satisfied, at least not in the cases of active users. But maybe that's okay, maybe that just lets Facebook be Facebook for those who remain. (More significantly, though, Facebook's Terms define "IP content" narrowly, and arguably leave Facebook a "loophole" by regarding many user generated content issues as matters to be dealt with instead by Facebook's privacy policy.)

Back to Twitter: I think where we're headed is something akin to a license that is revocable as to Twitter, but perpetual as to the content (and its derivatives) Twitter has disseminated elsewhere during the term of its license.

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