Paris tribunal guts Twitter’s T&Cs… including the copyright clause for user-generated content

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From IPKat:

Have you ever found yourself clicking– ‘Yes I agree to these terms & conditions’, without actually reading them? Probably yes [everyone does it…even lawyers]. Did that include your registration with Twitter? If so, you may not have realized that you agreed to a licence allowing Twitter (and its partners) to use at will any of the copyright-protected content you created and uploaded on their site. But not to worry, the Paris Tribunal, in a 236-page-long decision, “righted wrongs” last month by going over Twitter’s terms and conditions with a [very] fine-tooth coomb.

. . . .

The tribunal’s review declared ‘null and void’ most of the clauses challenged by the claimant, including the contract’s copyright licensing provisions for user-generated content.

. . . .

The case was brought before the Paris Tribunal by the French Consumers’ Association– ‘Union Fédérale des Consommateurs – QUE CHOISIR’ (UFC), on behalf of the (claimed) collective interest of Twitter’s users. This type of legal action is the closest thing to a class action that exists in France. In this case, UFC’s eligibility to act on behalf of Twitter’s users relied on Article L 621 of the French Consumer Law Code, on the basis of which Twitter users were deemed consumers.

The status of Twitter users as consumers was vehemently disputed by Twitter, which argued that its service is ‘free’, making it impossible for its users to be ‘consumers’ (within the meaning of the Consumer Law). According to Twitter, a person may be regarded as a ‘consumer’ only if it pays for contracted products and services.

The Paris Tribunal rejected this contention, stressing that whilst Twitter users do not ‘pay’ for the service, using its platform is not gratuitous. The Tribunal emphasised that users consented to their personal information and other data being used by Twitter (and its commercial partners), in exchange for the right to avail themselves of Twitter’s services. Consequently, since Twitter is not free, the consumer protection law does apply to their terms and conditions.

Twitter’s terms and conditions are spread across three main contractual documents: the ‘Terms of Service’, the ‘Privacy Rules’ and the ‘Twitter Rules’  (see here for the current English versions of these documents).

. . . .

The ToS features a provision according to which Twitter users license the copyright vested in all of the “content” that they upload onto the platform (e.g. text, photos, and videos) to Twitter and its “ecosystem partners” (i.e. third-party partners). The first sentence of the licensing clause reads as follows:

“You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).”(here) [this is the English equivalent of the clauses in French as considered by the Court]

Twitter’s licensing terms follow this paragraph (see here for the current English equivalent of the provisions considered in Court).

UFC challenged the licensing provision on two grounds. First, the claimant argued that the opening sentence gives the misleading impression that the licencing agreement is narrow in the scope its grants to Twitter whilst in fact, it grants a world-wide, royalty free licence for any use and for all content ever uploaded on the platform, with the right for Twitter to sub-licence such uses to third parties within their commercial “ecosystem”. In this Kat’s view, the licence granted to Twitter falls short of being an assignment of rights only to the extent that it is non-exclusive. The absence of exclusivity allows users to carry on using and sub-licensing (non-exclusively) their own content as they see fit.

Link to the rest at IPKat

PG notes that there is something of a parallel with the KBoards uproar of a few days ago.

The lawyers who work for the new owners of KBoards and those who work for Twitter have an obligation to act in the best interests of their clients.

One of the typical behaviors of IP and corporate attorneys is to do what PG will describe as “over-drafting” of contracts.

A representative example of over-drafting is the practice of some lawyers working for large Hollywood entertainment companies to ask a creator for a copyright license that grants not just worldwide rights, not but rights throughout “the universe” or “the currently known and unknown universe.” This language will cover exercise of the potentially valuable creator’s rights in the Alpha Centauri system when we get there. Somebody in Hollywood will already own the right to show reruns of Gilligan’s Island to the space explorers.

One species of over-drafting occurs when there is no one who represents a counter-party who is in a position to say, “That’s a stupid clause” or “You’re asking for much more than you need.”

Another species of over-drafting appears when one attorney writes a perfectly good TOS during the early stages of an internet company’s existence, then another attorney or law firm is asked to review the TOS a couple of years later. How does the second attorney demonstrate his/her usefulness? By changing and expanding the TOS.

Boilerplate contracts and contract provisions (a category within which a TOS resides) never get shorter. They invariably expand over time as each lawyer provides a personal legal touch.

In PG’s improbably humble opinion, the attorneys drafting the Twitter TOS wandered into the over-drafting arena. Drafting the TOS in 2018 should cover the uses Twitter will make of user posts in 2018 and knows it will use in 2019 because of current development activities.

PG suggests it is not too much to expect from Twitter to ask it to articulate the actual ways in which it will use content contributed by third parties during the foreseeable future (which is not forever, especially for an internet company).

As the platform changes, the TOS changes and users can make their decisions about whether they want to post something on Twitter or not. Their historical posts are subject to the TOS in place when they made them.

1 thought on “Paris tribunal guts Twitter’s T&Cs… including the copyright clause for user-generated content”

  1. “Their historical posts are subject to the TOS in place when they made them.”

    Until they get bought and a new owners ToS does a rights grab – as we saw with KBoards.

    “PG suggests it is not too much to expect from Twitter to ask it to articulate the actual ways in which it will use content contributed by third parties during the foreseeable future (which is not forever, especially for an internet company).”

    Sadly they don’t want us to know what all they can/want to do with the info – it might get them what facebook is getting as their secrets come out.

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