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Tweets Belong To The User….And Words Are Complicated

By - September 06, 2012

(image GigaOm) Like many of you, I’ve been fascinated by the ongoing drama around Twitter over the past few months (and I’ve commented on part of it here, if you missed it). But to me, one of the most interesting aspects of Twitter’s evolution has gone mostly unnoticed: its ongoing legal battle with a Manhattan court over the legal status of tweets posted by an Occupy Wall St. protestor.

In this case, the State of New York is arguing that a tweet, once uttered, becomes essentially a public statement, stripped of any protections. The judge in the case concurs: In this Wired coverage, for example, he is quoted as writing “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.”

Twitter disagrees, based on its own Terms of Service, which state “what’s yours is yours – you own your Content.”

As the NYT puts it:

Twitter informed the (Occupy protestor) that the judge had ruled his words no longer belonged to him: (he) had turned them over to Twitter, in other words, to be spread across the world.

(Twitter’s) legal team appealed on Monday of last week. Tweets belong to the user, the company argued.

I find this line of argument compelling. Twitter is arguing that its users do not “turn over” their words to Twitter, instead, they license their utterances to the service, but retain rights of ownership, those rights remain with the person who tweets. It’s a classic digital argument – sure, my words are out there on Twitter, but those are a licensed  copy of my words. The words – the ineffable words –  are still *mine.*  I still have rights to them! One of those rights may well be privacy (interesting given Twitter’s public nature, but arguable), but I can imagine this builds a case for other ownership rights as well, such as the right to repurpose those words in other contexts.

If that is indeed the case, I can imagine a time in the not too distant future when people may want to extract some or all their tweets, and perhaps license them to others as well. Or, they may want to use a meta-service (there’s that idea again) which allows them to mix and mash their tweets in various ways, and into any number of different containers. Imagine for a minute that one of those meta services gets Very Big, and challenges Twitter on its own turf. Should that occur, well, the arguments made in this Manhattan case may well come into very sharp focus. And it’s just those kind of services that are nervous about where Twitter is going.

Just noodling it out. I may be missing some key legal concept here, but this strikes me as a potentially important precedent. I plan to speak with folks at Twitter about all this soon, and hopefully, I’ll have some clarity. Stay tuned.

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20 thoughts on “Tweets Belong To The User….And Words Are Complicated

  1. Maria Dorfner says:

    Interesting. Take a look at my most recent post.

  2. bob says:

    If tweets belong to the user, can the user then authorize their presentation in a form that does not meet the new Twitter API rules?

    • johnbattelle says:

      A fine question….

    • perryevans says:

      agree that this feels like the BIG question. I presume that a large part of Twitter’s offensive posture on client app is to close off the “entry point” from becoming a point of alternate distribution. When you own the point of content entry, it’s a LOT more complicated to invoke re-distribution.

      • johnbattelle says:

        Arguing for the heck of it, but…how would Twitter know if I am using a client that passes my tweets to Twitter, but also does other things with it, like passing those same words (not the tweet, but the words) to other applications?

  3. Sounds like Twitter may have been influenced by the policy at The Well. The policy there is “You own your own words”, or YOYOW for short.

  4. You’re confusing Twitter’s two arguments as a single issue. One deals with ownership because Twitter would rather nit be involved in the fight–that’s where the license versus ownership comes in. The other deals with if the tweets should be turned over–that’s the reasonable expectation of privacy issue.

    • johnbattelle says:

      Appreciate the clarification, but it seems Twitter is also conflating the two, no?

      • Not really. Their brief has two main points (plus some facts and a minor third argument). The first argument is about the original author (Harris) should have standing in the court to fight the subpoena. The lower court had held Harris had no right to do so, Twitter brings up the ownership issue from its terms as a response. If Twitter wins this argument it just means Harris gets to make his own arguments rather than Twitter. The privacy issue is separate–it’s about whether the tweets should be turned over no matter who makes the argument.

  5. [...] John Battelle hits on an interesting argument with regards to the “ongoing legal battle with a Manhattan court over the legal status of tweets posted by an Occupy Wall St. protestor”: who owns tweets? Battelle’s post title says “Tweets belong to the user” but I’m not so sure. [...]

  6. Colin Walker says:

    John,

    As I posted on my blog, there must be a distinction made between the content and its associated tweet.

    The ToS is clear on the user owning the content but Twitter HAS to own the Tweet. I think this is the only way they can reconcile the user ownership of content with the ability to enforce tweet display rules via the API.

    The content isn’t a tweet on its own – it’s just words, the tweet is created by the service when the standard format is applied to the user content. The tweet is the combination of content + presentation + functionality + metadata such as conversation information.

    http://colinwalker.me.uk/2012/09/what-is-a-tweet/

    • johnbattelle says:

      I agree that what you argue makes sense, but the Terms are not crystal clear on this. They say “you own your own Content”….and it’s pretty easy to conflate Content with Tweets. However, it’s clear that can’t be the case.

  7. [...] Tweets Belong To The User….And Words Are Complicated Share this:TwitterFacebookLike this:LikeBe the first to like this. Categories: ereading, libraries, publishing, Social Networks Comments (0) Trackbacks (0) Leave a comment Trackback [...]

  8. [...] founder John Battelle noted in a recent post that the company’s argument in the Occupy case raises a host of questions about what it means when a user owns their content, and what responsibilities that should impose on [...]

  9. [...] Media founder John Battelle noted in a recent post that the company’s argument in the Occupy case raises a host of questions about what it means when a user owns their content, and what responsibilities that should impose on [...]

  10. [...] John Battelle hits on an interesting argument with regards to the “ongoing legal battle with a Manhattan court over the legal status of tweets posted by an Occupy Wall St. protestor”: who owns tweets? Battelle’s post title says “Tweets belong to the user” but I’m not so sure. [...]

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