Whose words are they, anyway?

10 02 2011

Like in the non-virtual world, fights and squabbles are a part of online communities. After all, bloggers and tweeps are groups of like-minded people who have all congregated together in the vast space of the Web.  As with any group, there is bound to be friction and tension as people interact and connect.  We’ve seen before how bloggers will fiercely defend one of their own against a larger entity, and while bloggers will occasionally pick fights with each other, it’s generally a contained fallout.  Recently, however, there was a situation where the ramifications spread far beyond the bloggers involved. The subject matter? A familiar one: ownership of content.

Twitter conversations (or Twitter parties) are a common occurrence in certain communities.  Using a keyword and hashtag, a group of tweeple will congregate at the same time and hold a discussion.  Generally, there is at least one or two conversation hosts or moderators who set up and help guide the discussion.  The online travel community has several of these conversations on a weekly or monthly basis, the most popular being #TNI.  Run by a group called ZipSetGo, #TNI is a quickly moving conversation that covers a variety of travel related topics.  Up until a few weeks ago, everything seemed to be running fine until Pam Mandel (@nerdseyeview) noticed something on ZipSetGo’s website.  Under the Traveler’s Night In tab, there was a notice where ZipSetGo explained that they were compiling and publishing a book from the Twitter parties and that those participating in #TNI chat were giving their consent for their tweets to be used (this notice has since been removed from the website).  Pam Mandel was not comfortable with this potential use of her tweets and wrote an entry about it on her blog.  The response was immediate and overwhelming.

Comments on her blog started flooding in from both sides. The next #TNI conversation, held only a few days later, was rife with resentment and comments from people who ignored the topic at hand (Australia, I believe) and instead, drew lines in the proverbial sands of this battle.  In a show of fairness by both sides, Pam Mandel published a response from ZipSetGo publicly on her blog. She responded to them, they responded back and the readers continued to chime in.

From blog to twitter and back again, everyone seemed to have an opinion.  All the big names in the online travel community weighed in on one side or the other.  There was so much fallout that ZipSetGo eventually sent out a statement saying they had pulled the book from publication and all profits made would be donated to charity. Although the pulling of the book appears to have effectively ended this argument (or not), nothing was actually resolved and the underlying questions have yet to be answered.  The crux of the issue was this: Did ZipSetGo have the legal right to take words that someone typed in a Twitter conversation, put it into physical print form and profit from it? If reviews by Amazon customers are the property of Amazon itself, does ZipSetGo hold rights to any tweets sent out using the #TNI tag?  Or does that mean that Twitter does, but Twitter users do not?

In order to give you a more definitive answer than a half-shrug and a weak “eh….maybe?”, I asked business lawyer Elizabeth Lewis, who works mostly with online companies, for her professional insight.  Lewis quickly summarized the two legal opposing arguments for me: 1) to enter into a contract, both parties must know they’re entering into the contract,  and 2) in most cases, short phrases and slogans can’t be copyrighted.  Let’s examine these two aspects as related to this case study.

You cannot be bound to a contract if you weren’t even aware you were in one. The founders do all have http://www.zipsetgo.com in their twitter profiles and if you click on that link you could maneuver through their site to the paragraph (which has since been deleted) that supposedly released them to use #TNI tweets.  However, you can use the #TNI hashtag without ever having visited their site.  If you’ve ever participated in #TNI, you know that it can be hard enough just to follow the conversation, much less narrow in on the hosts and click through links in their profiles.  Unless ZipSetGo could prove that the tweeps participating in #TNI had read and agreed to the paragraph on their homepage, there is no ground for consent. Essentially, the use of the #TNI hashtag really makes no difference as to whether ZipSetGo could publish someone else’s tweets.

In most cases, short phrases and slogans can’t be copyrighted. Everyone knows that Twitter limits each tweet to 140 characters; it’s a defining (and challenging!) characteristic.  What we don’t know is whether 140 character is considered a short phrase or slogan as in most cases 140 characters do not have the creativity to qualify for a copyright.  Lewis explained that there is no qualification for what constitutes a “short phrase” since a case centered on a tweet has never gone through court.  140 character is approximately a few sentences long (although that can quickly be eaten up by retweeting, directing them at certain people, or by using hashtags to associate it within a certain context).  Tweeps have come up with all kinds of shortcuts and acronyms to help them fit complete thoughts into the limited amount of space they’re given but there is no legal understanding for whether a tweet falls under copyright non-protection.

So where does that leave us now?  Essentially, with a more assured shrug and a less hesitant “maybe.”  Lewis explained to me that the courts are way behind in social media law and until someone takes a situation like this into the courtroom and a judge makes a ruling, there is no legal precedent. However, she went on to explain that copyright looks at the whole of something being taken.  If ZipSetGo’s book had published the last thousand tweets from a specific (and uncompensated) twitter account, she would take the case.  However, if a single tweet was taken from the potential client’s history and published, she would have to look at the case more closely before deciding whether to take the case or not.

The moral of this story is perhaps best summed up by one wise #TNI participant’s point:

Which side of the line do you fall on?  Should ZipSetGo be able to publish their book without fear?  Is there an expectation for ownership of tweets?


Thanks to michperu and Ed Yourdon for use of their images.