Copyright has proven to be a thorny subject in the digital era we live
in. That’s particularly true for traditional media. From record labels
to newspapers, the internet has taken a lot of the blame for the woes
of media companies that were once dominant. A lot of the time, their
woes are connected, directly and indirectly, with internet-based
copyright infringement.

To be sure, the internet has raised a lot of copyright-related
questions. Where does fair use end and copyright infringement end? Are
hot news” laws a necessity given that bloggers can so easily piggyback
on the reporting of major news organizations?

Much of the time, the discussion around the internet and copyright focuses on how the internet has harmed traditional media. But it’s increasingly evident that traditional media isn’t the only party who can claim to be victim of copyright infringement.

One of the most recent examples: the Cook’s Source fiasco. Cook’s Source, of course, is the small, local food publication that made headlines when it was caught plagiarizing. The author, who was quite surprised to learn that an article she had written was published by Cook’s Source without permission or payment, became the subject of a furious backlash when it incredulously tried to claim that its blatant copyright infringement was fair use because “the web is considered ‘public domain’.

Cook’s Source may not be run by a major media conglomerate, but it isn’t alone in its twisted understanding of copyright and the law. Agence France-Presse (AFP), for instance, a major news organization, is currently involved in a lawsuit that has AFP taking a Cook’s Source-like position.

At issue: whether AFP (and anyone else for that matter) has the rights to use and license content posted to Twitter and the Twitpic photo sharing service, something that AFP did when it took a

As Venkat Balasubramani, a lawyer and legal blogger, explains, AFP believes that the terms of services of the Twitter and Twitpic give it the right to do just about anything with content individuals upload to these services. There’s only one problem: the terms of services for both services do nothing of the sort. When you upload a photo to Twitpic, for instance, your upload is subject to Twitpic’s terms of service, which states:

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

All images uploaded are copyright © their respective owners

For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service. You understand and agree, however, that Twitpic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.

None of this language grants specific third parties, including AFP, any rights, and hypothetically, even if TwitPic had a contractual agreement with TwitPic, removing your photo from TwitPic would leave AFP out of luck when it comes to using and licensing your work.

Not surprisingly, Balasubramani believes AFP is “unlikely to prevail on its motion“, and uses the word “shockingly” to describe AFP’s continued argument that its “off-base” interpretation of Twitpic’s terms of service gives it the right to use and license the work of other individuals without their permission.

But AFP’s position is not just absurd; it’s downright hypocritical given the fact that AFP has filed copyright infringement lawsuits to protect its own content. The most notable being its 2005 copyright infringement lawsuit against Google. AFP alleged that Google was violating its copyrights by displaying AFP headlines, photographs and summaries in Google News results. Prior to settling, Google had argued that its use of AFP content was protected by fair use.

What’s clear from all this is that copyright on the internet is a two-way street. Traditional media does a lot of complaining, and to be fair, it sometimes has good reason. But that doesn’t mean that individuals and businesses creating and distributing their content on the internet don’t have anything to complain about either. They increasingly do, and oftentimes, their complaints are the result of infringement at the hands of traditional media companies who should know better.

If traditional media hopes to have an honest debate about the future of copyright in the digital age, exiting the high road and becoming a source of infringement itself will buy traditional media companies even less support than they have now.