Published by LawTechie - May 9, 2012 - LawTechie

Copyright LawThe lawsuit is actually a criminal matter filed by the Manhattan District Attorney against one Occupy Wall Street protestor who was charged with disorderly conduct for walking on the street (as opposed to the sidewalk) on the Brooklyn Bridge back during the 2011 protests.

According to MediaPost, the DA subpoenaed the protestor’s Twitter records for the following reason:

apparently [the DA] believes that Harris’s former Twitter account, @destructuremal, will help the government to refute the claim that the police themselves were responsible for Harris’ move to the roadway.

Here is what is interesting:

Criminal Court Justice Matthew Sciarrino Jr. denied that motion last month on the ground that Harris lacks “standing” to oppose the subpoena, because Twitter “owns” the tweets.

Sciarrino says that Twitter’s terms of service grant the company a license to distribute tweets — which means that Twitter owns the material. “Every single time the defendant used Twitter’s services the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have. Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his,” the judge wrote.

Woah. Stop. This is some seriously bad copyright law.

Firstly, Twitter’s Terms of Service clearly state that its users own copyrights to their posts and that, by posting, users merely grant Twitter a non-exclusive world-wide license to republish said posts (Twitter itself points this out in its motion to quash the DA’s subpoena).

Secondly, even the Judge (see above) recognized that “Twitter’s terms of service grant the company a license to distribute tweets.” Thus, the Court somehow conflated a license to distribute with a wholesale copyright ownership grant. This is bad copyright law since licensors of copyrights obviously retain ownership of their copyright when they license their work to publishers, distributors, etc…

On the privacy side of things, Twitter raises an interesting point that the DA needs a warrant, rather than a subpoena, to access Twitter accounts. This, of course, goes to the question of whether Twitter users have a reasonable expectation of privacy in their tweets. I would imagine so.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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