The curious case of Twitpic’s disappearing Terms of Service

11 May 2011

Update: Thanks for all the RTs everyone. For those of you who don’t want to read the whole story, the TLDR version is this: Twitpic changed their ToS to restrict users from selling their uploads to agencies, then retreated very hastily after a Twitter backlash. If you want to know more, read on.

Another week goes by, another scrape on Twitter. This time slightly less interesting than my stumbling on the bin Laden liveblogger, but still intriguing, as I have never before seen a tech company edit its Terms of Service live in front of my eyes, like a Wikipedia entry, in response to a Twitter storm.

Twitpic is one of the leading Twitter image hosting services out there – about four million daily users, the site the famous photo of the plane landing in the Hudson River first appeared on, and the default image service for the Twitter iPhone and desktop clients. It has become big business – it brings in $1.5m in ad revenue a year.

If you run an image hosting service, you have to be careful in how you treat users’ copyright. Your users (usually) own the copyright to the photos they upload, but the service will need some form of non-exclusive royalty-free licence to legally host it on its servers. This licence is included deep in the terms of service. So far, so dull. However on May 4th, Twitpic’s terms of service changed, specifically the copyright section. The copy I have for reference is from Google’s cache and is mirrored here and it’s the first four paragraphs of the copyright section that bear most interest:

By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.

You may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.

All content uploaded to Twitpic is copyright the respective owners. If you publish content uploaded to Twitpic on the web for personal and noncommercial purposes you are required to link back to the original content page on Twitpic and attribute credit to Twitpic as the source where you have taken the content. For example a Twitter “retweet” is acceptable provided the original content link on Twitpic is what is retweeted. It is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.

To publish content for any commercial purpose or for distribution beyond the acceptable Twitter “retweet” which links back to the original 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. No user may grant a third party permission to copy or save content that has been uploaded to Twitpic.

The first part highlighted is a clause seemingly denying anyone who uploads a picture to Twitpic the media exploitation rights for that picture; it specifically targets those businesses who might want to pay for it. The second is a more vaguely-worded catch-all clause that, in the most draconian interpretation, could deny a user from uploading their own pictures to other hosting services like Flickr.

For comparison, this was the equivalent section from the terms of service in May 2010, which is the most recent copy held on archive.org – sadly I have no more recent copy to compare with:

By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

All images uploaded are copyright © their respective owners

[Note: I am not a lawyer, and this is just a lay reading of the situation. But it will become clear, I hope, that these passages are at the centre of what went on in this kerfuffle]

Although these changes were made on the 4th, having done a little detective work on Google Realtime, it seems no-one picked up on them for six days. A single Tweet by @JMRooker on the 5th noted they had been updated, but not on what had changed. It wasn’t until this article (in German) appeared in in Der Spiegel‘s tech section that noted the change this afternoon. The first Tweet I have found was by Beate Clever in German at 15:54 UK time; at 16:49 it was Tweeted in English by Oliver Reichenstein.

Although it took six days for the news to get out, once it did it spread very quickly. Oliver’s Tweet was spotted by my We Are Social colleague Hannah, who retweeted it herself at 17:59, and I promptly followed at 18:05. By this point the story had legs – though I was by no means the only person talking about it, my Tweets on the subject got picked up and retweeted by some excellent & influential Twitter people such as Zoe Margolis and Tom Coates.

You could be easily convinced this was just another angry Twitter mob. But those who responded shared some interesting points of view. Was I being unfair on Twitpic? Did the terms only apply to the version they hosted? But if so, what makes that version different from the original copy you took? Did it only proscribe you from sending the Twitpic to a media agency, and if so would emailing a separate copy of the image as an attachment be just fine? Or was it just a protection from unfair infringement by media organisations? With the new terms of service as vaguely worded as they were, it was subject to various interpretations as the buzz spread.

The specific mention of picture agencies coincided with yesterday’s news that Twitpic had signed a deal with the photo agency WENN to represent celebrity pictures posted on the service (what Der Spiegel picked up on). So this was perhaps a foray for Twitpic to become a citizen journalist version of the PA, providing free hosting in exchange for the right to licence the rights to picture agencies. The idea has been mooted before. In theory, the next time a plane lands in the Hudson River, Twitpic’s ToS would allow it to sell the rights to witness photos uploaded to the service, and prevent the photographer from seeking those rights herself, if the company so chose. Whether Twitpic seriously thought of this as a future business model, or was just enabling these terms now in case they would come in handy in the future, we don’t know, and I am not saying one way or the other.

Finally, apart from legalities, is what they’re laying out morally fair? The new ToS brought a fair bit of opprobium (not least from myself). But, do remember, with free image hosting, you aren’t paying, and although they are getting cheaper, bandwidth and scaling up a service do cost. Online display advertising is just one business model and has increasingly tight margins, so Twitpic may be in the early stages of exploring alternatives. As with any service offered online for free – always caveat emptor.

Twitpic managed to backtrack very quickly. At 18:45, the support team hurriedly tweeted back to me (and then others in the story, such as Oliver) the same message, stating:

@qwghlm We’re working on a clearer version of our ToS now to show better that we are not taking your copyrights or selling your photos.less than a minute ago via web Favorite Retweet Reply

They were true to their word; suddenly whole chunks of the text started to disappear from the Terms of Service page as it was being edited; I managed to take notice and livetweeted the progress. Round about 19:05 UK time, out went the second paragraph about photographic agencies entirely. At the start appeared an entirely new paragraph affirming copyright holders’ rights to their work. The paragraph on non-commercial reuse was cut, save for the final sentence (“It is not acceptable…”), which was merged with the new first paragraph. By 19:52 the final edit had been made: from the fourth paragraph, the third party sentence was cut out entirely, and the start was reworded to affirm it applied to reproducing other users’ content, and did not cover your own. In the updated Terms of Service, the equivalent text to the above now reads:

All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.

By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.

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.

Those changes might be a bit much to get your head around, so to make it easier to appreciate how big they are, I have created a side-by-side comparison of the two wordings – old is on the left, new on the right – and created a diff of them (the changed bits in blue). Feel free to click through to a full-res version.

Diff of change in Twitpic's terms of service

You can see for yourself that the changes are quite extensive, and the terms are now vastly stronger in their affirmation of uploaders’ rights. A mere clarification this is not, in particular the second sentence of the first paragraph – “The owners retain full rights to distribute their own work without prior consent from Twitpic” – is in marked contrast to the original wording.

Twitpic have published a blog post called “Your content, your copyrights“, which states their reasoning for changing the Terms of Service:

As we’ve grown, Twitpic has been a tool for the spread of breaking news and events. Since then we’ve seen this content being taken without permission and misused. We’ve partnered with organizations to help us combat this and to distribute newsworthy content in the appropriate manner. This has been done to protect your content from organizations who have in the past taken content without permission. As recently as last month, a Twitpic user uploaded newsworthy images of an incident on a plane, and many commercial entities took the image from Twitpic and used it without the user’s permission.

It’s great that a hosting service is explicitly protecting its users from exploitation and unlicenced copyright infringement. But the original draft of these updated terms of service made it clear that it was about more than just preventing unscrupulous news organisations from misusing photos. The now-removed sections were clearly about preventing users from selling their rights to their own uploads to third parties, not protection from theft. And unlike the apologetic blog post on May 10th, these initial changes to the ToS were not publicised to the wider community when they went up on May 4th; as I have detailed above, it took six days before anybody actually noticed – and by the way, all the credit should go to the tech team at Der Spiegel for spotting it. How Twitpic went about this change is not how a tech company should publicise changes to its users; whatever their motives were for updating their ToS or whatever plans they have for their business model, at the very least this was a major failure in communication.

Twitpic do deserve some plaudits for reacting quickly to the situation, answering those of us who questioned it on Twitter, and updating the Terms of Service to something more acceptable in ludicrously quick time and manner. I say more acceptable. They do still retain a licence to distribute your content as long as it is done in connection with their business, and that business model could well change from being an ad-supported image host in future. There’s nothing stopping you from exploiting the rights to your image, but they have those rights too. You may be fine with that, in which case carry on, or you may not feel entirely comfortable, in which case you may still want to choose somewhere else to host your images. I’ll repeat what I said above, when it comes to free stuff, caveat emptor, especially if you reckon you stand a chance of one day being the next person to snap a plane in the Hudson.

Update (18/05): Tom has received a letter confirming Twitpic’s intentions to “exclusively” resell photos through the WENN picture agency. There is still no announcement of this on Twitpic’s own blog or in the terms of service. So, what gives?


12 Responses

Looking at the third paragraph, all they have done is distil the offending TOS down into less words. Look.

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.

I am not a lawyer but, if you look at it, they are still demanding that ANY user, including the original owner of the post, request permission from Twitpic in order to further distribute it. If someone catches another plan l;anding in a river and posts it to twitpic, they will then have to ask Twitpic’s permission in order to give/sell the image to the news agencies.
The first two paragraphs are a whitewash, the essential bit is in the third para quoted above.

@Alan – not really, the key bit in that paragraph being “another Twitpic user”, ie somebody other than yourself. It would not exclude you selling your own content, but it would stop you from trying to sell my content without Twitpic’s consent.

That’s my understanding of it anyway.

@Alan @Tom I agree that that graf is still offensive, but have a slightly different understanding of how. Taken in conjunction with the strongly worded bit at the top about users having the right to distribute their work, it appears to suggest that while you, as a Twitpic user, are free to contract your images out to others, the people you sell to [by implication, media organizations] still have to notify, credit and get permission from Twitpic for publishing it. It no longer places restrictions directly on users, and no longer denies users compensation for their work. Instead, it places the burden on media organizations in such a way that still ensures Twitpic has some control over what gets republished and can, one assumes, use that position to ask for a cut.

It’s a restriction media organizations are apt to like, because while Twitpic is saying ‘we’ll come after you if you buy photos from our users without telling us,’ and while they are saying ‘the work belongs to our users,’ they aren’t saying, ‘we’ll come after you if you buy from us without telling our users.’ In fact, they’re saying, to users, ‘we have the right to distribute your images directly.’ It’s much much easier for journalists to get permission from Twitpic than it is to track down individual users. So this restriction on news orgs or other re-publishers becomes an incentive to unethical, ungracious, callous use of user-generated content, which is hardly something journalists need an incentive to do more of.

@Maha Thats kind of what I’m saying, yeah, but there are angles in there. For one, I completely disagree that its difficult for news agencies to contact users directly. It isn’t at all, its simply a case of typing “@ hey I work for Fluffy Bunny News, please follow me I want to DM you about a licence for that image”

For example, lets say I have taken a picture which for some reason becomes newsworthy and upload it to twitpic. I then decide to sell the image to a news organisation for an amount which I am quite happy with. Suddenly, Twitpic pops up and says “nope, not till you pay me $x,xxx.xx”, whereupon the news agency decides it would make more sense to just use the library pictures.
These ToS are egregious and deceptive. The first two strongly worded paragraphs are nothing but fluff to reassure the reader, then the third paragraph attempts to insert Twitpic as joint rights holders to the content.

Nice try, Twitpic. Fail. Try again.

Alan

[...] The curious case of Twitpic’s disappearing Terms of Service | qwghlm.co.uk #Twitpic and image #copyright: worth watching http://bit.ly/jaFF7s #twitter (tags: copyright via:packrati.us twitter Twitpic) [...]

bob

the so called “offensive” part to me reads that you cannot allow anyone the right to take the images off the Twitpic service/website. Thats pretty straightforward. It doesnt say you can no longer distribute by other means as they dont have to control your IP in that way, merely that it cant be done thro twitpic. To be so restrictive would likely require express permission of the copyright owner.

Thats fair enough really. In many ways it could protect users who have their pics taken from the site without permission for e.g Daily Mail articles or other media reasons.

Its not particularly well worded if it has caused so much confusion but I dont see it as Twitpic taking ownership of your material in the same way the twitterati has panicked.

@maha – you’re right, journalists for big companies often need little encouragement to rip off citizens posting images online. But who needs them? The people taking the pictures and video in the first place can be the ones to spread the news themselves, given the right platform that protects their rights. That’s one of the reasons Citizenside exists. It’s a “citizen journalist version of the PA” as Chris put it. We share citizen news and if there’s licensing going on, we’re designed to give the contributor the majority of any income. It’s what we do.

Steve Dantzig

Thank you…I just posted on my FB.

[...] uploaded. Twitpic is a photo service built to work with Twitter. During the course of the day, as Chris charted so well, Twitpic redacted its changes and reverted to the original ToS. All sorts of bits have since [...]

[...] complément, je vous suggère la lecture de ce billet du blogueur anglophone Chris Applegate, qui a décrit en long et en large toute l’histoire le 11 mai [...]

[...] Eighty-Four from our Kindles, Apple sucks a vaguely subversive App out of our iPhones, or Twitter claims exclusive ownership of any photo we upload, we don’t know how to feel about it. Is it a publisher legitimately choosing not to put out [...]

When I upload pictures on Twitter via Twitpic the older ones disappear! (I knew I should’t trust Twitter for those memories) That’s why I’ve switched to Instagram, it was resolved but days after it went back to deleting my old photos again whenever I upload a new one. I used to have 10 rows but as I upload new pictures be it via Twitpic or Instagram or what it deletes older pictures right now I only got 4 rows of pictures most of my real time one moment memories gone. I don’t know how or where can I retrieve my pictures but for sure.

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