Standing up for user generated content

High stakes reading of Twitter's terms of service in the New York court proceeding that has been getting a ton of attention.

I haven't followed all of the issues and arguments presented, but a key procedural point appears to turn on just how much control a Twitter user has over her tweets.

The procedural point is whether the Twitter user, whose tweets are at issue, has "standing" to intervene in New York State's efforts to get copies of his #OWS (and possibly other) tweets directly from Twitter.

"Standing" is a legal doctrine that has to do with who may and may not show up and have a voice either in a particular lawsuit or in a discrete legal proceeding. To make up a very rough example, suppose John and Sally from Atlanta file for divorce in a Georgia court. The Pope in Rome hears about this. Believing in the sanctity of marriage, the Pope flies to Georgia, attempts to file a motion with the court to deny the divorce, and while he's at it asks the court to subpoena the local office of Planned Parenthood to obtain records of birth control dispensed to John and Sally. Because the Pope's interest in John and Sally's personal lives is so attenuated, he lacks "standing." Consequently, the court needn't pay any attention at all to the Pope in the matter.

While, in the hypothetical above, it is clear that an interloper should not be able to slow the wheels of legal process down, sometimes rulings about "standing" are counter-intuitive. "Standing" rulings can seem downright crazy when persons with obvious interests at stake are told the doors to the court are closed.

The New York proceeding gives us a "standing" ruling in the latter category. How could a Tweeter not have standing in a case that was all about access to his own tweets?

Well, in addressing that question, the judge in the case cited Twitter's terms of service, which give Twitter very broad rights to use every tweet posted to Twitter. "Every single time the defendant used Twitter’s services," the judge wrote, "the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have."

The judge continued, "Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets." Ergo, no standing for the defendant to challenge New York State's attempts to obtain the defendant's tweets directly from Twitter.

Why I find this so interesting is that, in response, Twitter takes a fairly unequivocal and highly public position about ownership and control of user generated content.

Here's part of what Twitter says to the court (citations omitted):

"Twitter’s Terms of Service make absolutely clear that its users own their content. The Terms of Service expressly state: 'You retain your rights to any Content you submit, post or display on or through the Services.' See Terms of Service (available at http://twitter.com/tos). Twitter users neither transfer nor lose their proprietary interest in their content by granting a license to Twitter to provide the services. Moreover, unlike bank records, the content that Twitter users create and submit to Twitter are clearly a form of electronic communication that, accordingly, implicates First Amendment protections . . . ."

Now, as a Twitter user, I have to say, I like that argument and the use of the word "proprietary."

To me, it suggests that Twitter will have to check with you before it starts using your tweets and your likeness in the way Facebook exploits user posts and personal attributes to promote branded products. The argument Twitter is making to the New York court suggests that, broad though Twitter's public publication right may be, you as a Twitter user can pull back, take ownership of, assert control over, even limit, what Twitter may do with your tweets.

Photo: "stand your ground" by akshay moon / Flickr.