Too Long for a Tweet

My response to Twitter’s new Terms of Service agreement is more than 140 characters long, so, here ’tis, in blog-form:

I don’t like it.  It’s a rights grab.

I’m not sure what their old TOS looked like, and for all I know, this was in there previously.  However, let’s talk a bit about what’s there now and why it’s not cool.

Here’s the part I don’t like, under the “Your Rights” section:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

They have a reassuring little “tip” below that, stating:

This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.

Yes, but that doesn’t address the whole thing.  You own the content, but look again:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Bolded part mine.  Let’s take ’em piece by piece:

  • By submitting, posting or displaying Content on or through the Services

What that says is, “if you post 140 characters in that box and hit ‘update,’ you are agreeing to our Terms of Service.”  You don’t have to sign any contracts, you don’t have to click an opt-in or opt-out button.  Well, actually, you sort of do.  The “update” button is your opt-in button.  It’s like buying a piece of software, opening the shrink wrap, and seeing on the install CD that the act of opening the package constitues agreeing to the Terms of Service, whether you’ve read them or not. With Twitter, the only way to opt-out is to not use Twitter.

  • you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense)

That copyright of yours?  The one they just said you retained?  You’ve just given them license to use it.  They’re not claiming your words, they’re claiming the right to reuse your words.  So, sure, maybe they’ll be nice and attribute anything of mine they use to @falconesse, but they don’t have to.  And royalty-free?  Well, cats and kittens, that means they don’t have to pay you a single penny.

  • to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content

“If there’s any synonym for reproducing we’ve missed, we’ll add it in later.”  “Publishing’s” the term that most concerns me.  Not that any of my tweets are worth inclusion anywhere, but let’s say they decided to publish a book of Twitticisms and collect the 100 wittiest tweets.  Let’s say mine’s one of them.  Under the Terms of Service, they can use it, without even letting me know they’re going to.  And they don’t have to compensate me in any way.

Think about it:  how many successful people and celebrities of all caliber are on Twitter right now?  They could do a whole damned series if they wanted to:  Cooking Tips from the Twitterati; Writing Tips from the Twitterverse; Political Twisdom.  They don’t have to pay anyone a dime.  So, say, Uncle Neil does a Q&A on writing one afternoon.  The powers that be at Twitter, under these Terms of Service, can collect his replies into a book and publish it, and they don’t have to give Neil Gaiman a goddamned cent.

  • in any and all media or distribution methods (now known or later developed).

What this last bit does is say “So, yeah, whatever way we might be able to disseminate information in the future?  We can put your tweets out that way, too.”  Think about it — fifty years ago, the publishing industry didn’t have to think about eBooks.  Nowadays, they’re part of the contract.  But what about books distributed through iPhones and other electronic media?  New ways to distribute information are popping up faster than publishers can change their boilerplate contracts.  Twitter’s covering their bases by saying “we can use anything that hasn’t been invented yet, when someone gets around to inventing it, to redistribute those tweets of yours that you granted us license to use.”

So, bottom line is pretty much caveat emptor.  If you have a Twitter account, I suggest you don’t use it for your creative endeavors.  I’ll be curious to see how the people who have been tweeting their novels and short stories will react.  Because, y’know, if Twitter wants to, they can collect and republish those into their own anthology, and the authors have no way to argue against it, or collect payment for their own work.  Sure, they’ve got the copyright.  Doesn’t mean they retain the licenses.

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2 Responses to Too Long for a Tweet

  1. Gorebash says:

    A lot of the clauses in the ToS are necessary and, compared to other ToSes (see Facebook) it’s not bad at all.

    First, their business is to distribute the content you submit to them. So they need a clause that gives them this right:

    you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense)

    It doesn’t remove any of your rights to your content, but it does give them the right to redistribute your content anywhere in the world (the internet is global) without them having to pay you for doing it. The word “non-exclusive” is important, it means your content remains yours. They don’t own it. The right to sublicense could mean many things, but it’s probably there for two reasons. The first is so that any third-party involved in making Twitter run, like a hosting company or their ISP, can have the rights to store and transmit your content, and the other reason is to allow them to partner with other companies for promotions, such as maybe a “best world of warcraft twitter” contest where Blizzard would then be given the rights to post the winning selections on their own web site.

    to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content

    Same bit as before. The “adapt” and “modify” words are there probably to, again, cover all bases (of their ass), but say they allow people to post 500 characters in the future, but want to only display the first 140 on your Twitter feed. To do that they need the right to “adapt” or “modify” your content to abbreviate it in the feed they push out.

    in any and all media or distribution methods (now known or later developed).

    The “any and all” and “now known or later developed” are very broad words to use, but they have to be.

    If, for example, someone posts a tweet about a movie or game they like and Twitter (or a third-party) wants to quote it and stick it in print Twitter is going to need print rights to your content.

    If Twitter partners up with someone, like a news network for example, then they need to have the rights (and the ability to license those rights to the third party) to display tweets on the news program.

    You could argue that some of this is covered under fair use laws, such as quoting a tweet and using it in print, but Twitter doesn’t really want to rely on the gray and somewhat untested areas of what constitutes “fair use”. With this very broad clause they’re covered from all angles. No need to deal with expensive litigation on content rights.

    The scenarios you gave are absolutely possible and legal under this ToS, but is it so different from what’s already happening?

    Twitter sticks adverts on your Twitter page next to Uncle Neil’s comments and they’re making money off the content of Uncle Neil (and others). How far off is that from just publishing a book of tweets?

    Maybe in publishing a book the concept of what’s going on (selling your content to make them money and you don’t get a cent of the profit) is more obvious, but it’s already happening in other forms. And so far nobody seems to mind so much.

  2. falconesse says:

    I think the majority of the clause is to do all the things you stated, definitely. When Google got called out on it when people saw the clause in Chrome, they explained a lot of it in similar fashion (“Guys, if we don’t have this clause, we can’t, y’know, make gdocs go.”). I can agree that it’s mostly for the technical side of simply running Twitter day-to-day.

    However, (and pardon the link to Amazon; I don’t see this advertised on Twitter itself), there’s already an official collection of Twitter Wit out there. It states on the cover image that it’s authorized, but I can only imagine the nightmare that must have been tracking all the quoted people down and asking permission to use their tweets in a book.

    This clause says that from here out, they don’t have to drop you even a courtesy email saying that they’re going to use your material.

    I’m not, and never have been, suggesting that they’re taking away our rights to our own content. They’re not making grabby-hands at our copyright. But the clause does grant them the right — or, to be semantically correct — the license to reuse that content in any way that they see fit.

    Even if it’s collecting tweets into a book.

    The difference between putting ads up on a sidebar next to Neil Gaiman’s tweets and collecting his tweets into a book are vastly different. Sure, in their pure forms, both are ways to make money off of his content, but one depends on people actually clicking through to some third party (by clicking on advertising written by that third party) and the other one takes Gaiman’s actual words off of the webpage and into a different medium, where people would make their purchase based on his name and reputation.

    I realize that this is all a pretty extreme example — I don’t think Twitter’d be dumb enough to try to do this to Neil Gaiman or anyone else with the kind of clout he carries, but, let me be hyperbolic a moment anyway.

    Let’s say he decides to tweet, line-by-line, a short story he’s working on that’s not yet published, and intersperses some chatter about the writing process as a kind of lesson for new writers. By virtue of the TOS, if Twitter wanted, they could collect that series of tweets and publish something like The Annotated Neilstory.

    That’s directly profiting off of his work, and they don’t have to pay him for it, at all. Put those profits up against the amount of people clicking on an ad for Neil Gaiman Viagra, and I think (oh god I hope) the book profits would far outstrip the ad revenue.

    Twitter’s already done it. Icanhascheezburger has the same kind of thing in their terms of use: if you submit anything to their site — pictures, filling in a macro on an existing picture, whatever — they can redistribute it, including collecting it in a book or publishing a calendar of lolcats, whatever. Their book was a bestseller last year. I’d be surprised if the people whose cats were featured received complimentary copies.

    My guess is that nobody minds because a lot of people don’t quite grok the difference between copyright and license. Being assured that yes, you retain your copyright is good enough for most people. For me, it’s not enough. The next section raises red flags.

    I don’t necessarily believe that they’re going into it with malicious intent. It’s not like I think they’re going to have any trouble turning a profit, or are sitting at their desks rubbing their hands together while they sift through tweets to publish. What bothers me, though, is that with that TOS, they could.

    It would be nice if they’d state what the people at Google did, after there was objection to the Chrome TOS: “But in all these cases, the license is limited to providing the service.”

    If Twitter would follow that example, I’d feel a lot better.

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