Copyright and Privacy Questions Around Your Public Tweets and the New Library of Congress Archive and Google Replay

  and by Jill Jarvis-TonusJill Jarvis-Tonus, B.F.A. (Dramatic Arts), LL.B., leads the New Media/Copyright Practice group for Bereskin & Parr LLP. In recent years, Jill has increasingly worked on copyright and trade mark matters relating to new media products and Internet services, including the drafting of website agreements and other Internet related contracts, the selection and protection of domain names, advising on the infringement of copyrights and trade marks on the internet and privacy law concerns.
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Twitter has become a cultural phenomenon, 140 characters at a time. More than 105.8 million Twitter users creatinge 55 million “tweets” per day. Billions of tweets, since Twitter’s birth in 2006.

On April 14, 201009 two tweets announced that the Twitter phenomenon would become both indelible and searchable.

The U.S. Library of Congress (@librarycongress) tweeted that it “will acquire the ENTIRE Twitter archive — ALL public tweets, ever, since March 2006!” Google (@google) tweeted that you can “now use Google to search across the public archive of tweets and “replay” moments in time.” A small percentage of protected tweets, that are not publicprivate, will not be archived or searchable.

Twitter donated access to its archive of public tweets to the Library of Congress for preservation and research. After a six-month delay, the tweets can be used for the L library’s internal use, non-commercial research, public display by the Llibrary itself, and preservation.

Google has also created a way to revisit public tweets related to historic events. Google Replay allows you to search for keywords, and see what was tweeted at specific moments in time. Right now it is in Google’s Experimental Labs, and only goes back a few months, but eventually Google Replay plans to cover all public Tweets.

Aside from whatever historic or cultural value of the entire Twitter archive may have, it’s interesting to consider whether these initiatives meet Twitter users’ expectations.

Twitter is public, and for that reason alone, it may be obvious that user’s tweets are and may always remain public. On the other hand, some may tweet believing that the “public” is practically limited to their “followers” (perhaps reinforced by the ability to “block” unwanted followers). Twitter’s Terms of Service now make it clear that Twitter is public – the “You are what you Tweet” philosophy. However, the initial Terms of Service were not so express and Twitter’s popularity took off recently, andearly adopters may have not have had suchlikely believed that their audience wasn’t global or that their messages weren’t everlasting. Remember the rise of the Facebook nation when that social media site tried to unilaterally change its Terms of Use to allow for permanent retention of users’ content.

In terms of rights, Twitter users retain rights in their tweets, and grant Twitter a “worldwide, non-exclusive, royalty-free license (with a right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods (now known or later developed).” The rights could be strung together to cover “archiving,” and Twitter could be sublicensing these rights. For example, a right to use, reproduce, process, transmit, display and distribute could arguably be sublicensed as the basis to permit archiving.

Notably, though, an “archiving” right isn’t specifically enumerated. Even more notably, the license is neither irrevocable, nor perpetual. So what if a Twitter user tried to revoke the license (for example, wanting to maintain the market for a compilation of their most profound tweets). This leads to a whole other set of questions. 

• Do Twitter users have copyrights in their 140-character Tweetstweets?
• Are they original works, protected by copyright? 
• Would they be considered spontaneous utterances, subject matter that copyright has been reluctant to protect? 
•  Are all of the tweets of one user, a compilation? If so, who owns it?
• Would Twitter or the Twitter user have created the selection and arrangement of the compilation? 
• Does a grant of rights amount to an admission? 

Twitter’s initial Terms of Service referred to “copyright,”, the new terms just refer to “rights,”, although the grant is typical for copyright. All in all, would Twitter be required to comply and take down tweets if the license is revoked? If so, is there a domino effect on the Library of Congress and Google? If not, is Twitter sublicensing rights it itself lacks? Though the content of many tweets may not be complex, the potential copyright issues arising from these initiatives could be.

From a privacy perspective, it’s not obvious that there is a reasonable expectation of privacy in public tweets. Twitter’s Privacy Policy says that its services are primarily designed to help its users share information with the world, and that users are asking for most of the information provided to Twitter to be made public. That said, if Twitter provides its archive to third parties, such as the Library of Congress, that may amount to “disclosure” of personal information not covered by Twitter’s privacy policy. Users’ complaints to Privacy Commissioners could arise.

For those of you who fear your tweets being searchable and archived for all to see, if you “protect your tweets,”, only those you approve will receive your them, and they will not appear on the public timeline. 

Tweets posted previously may still be publicly visible “in some places” (whether these “places” will include the Library of Congress or Google remains to be seen).