January 27th, 2010

Marvel/DC WROOOONG!

The Huffington Post: "What are you thinking, oh, what are you thinking?"

D'you ever have one of those mornings where you just wake up and go, "I've had a spectacular idea! It came to me in a dream, festooned with pomegranates and tigers and needles and a naked woman!" (Thank you, Dali.) "I shall implement this immediately without thinking about it further!"

...Yeah, I think that's pretty much what some people over at The Huffington Post did.

Apparently one morning recently someone over there woke up with the idea that they could/should re-post random peoples' tweets on their website without prior permission, presumably in a ploy to increase their own readership. This caused some confusion (divers alarums) amongst the masses. So The Huffington Post removed this feature, and now says, cryptically:

HuffPost is building a directory to help our audience discover and follow the very best Twitter users. The feature is currently being tested and will launch in the near future. Our initial tests resulted in some confusion so we will do more testing before making it public.

Thanks, HuffPost Tech Team.


Aaaand...hm. Well here's the thing. This is an interesting situation, because on the one hand, you have Twitter, a social networking platform which is predicated in part on the idea that people re-posting your thoughts is a good thing, an exciting thing, and indeed a thing some hope for. For some it's used to build a readership, or to share other peoples' cool Twitterfeeds with friends, or the like. And that's awesome. And I am fairly sure that anyone who's on Twitter is not going to get all up in arms about someone retweeting their posts, because that is part of the point of Twitter. Some people work hard for that very thing.

So I can sort of see how the folks over at @HuffingtonPost might have thought about Twitter, and its purpose, and thought, "Hey, maybe we can use this!" and decided to do what they are apparently trying to do now. On the other hand, here's where I see a problem: Twitter is its own entity, and is a different animal entirely than The Huffington Post. One is a social networking site, used by many to talk with friends, sometimes having conversations personal to the conversants. It can have a smaller, community feel, depending on who one chooses to follow. It can almost be an extension of one's blog. The Huffington Post, on the other hand, is a major news website, with a different readership than someone's personal Twitter. It is not necessarily a place that I, for instance, would always choose to see my personal thoughts or even witty remarks (if I have them!) appear. Are we starting to see a divergence?

Now, I realize some people may have NO problem with their writings being re-posted on The Huffington Post. Maybe they will even be excited! Hey! Your own words, now on a major news site! And that's all well and good. But look at what HuffPost is saying - "the very best Twitter users." So...they aren't going to be re-posting the words of any Jane, Jack, or Judy. They are going to want to re-post popular Twitters, like, say, @neilhimself (Neil Gaiman), to choose an example of a popular Twitterer I follow who also has more personal conversations (like with his family) on Twitter. Or @cleolinda, who works hard to provide steady news updates to her readers; news updates that, presumably, HuffPost might use on their site. Let's assume, just for the sake of argument, that they do decide to re-post Neil's thoughts. (Please note I am just choosing Neil as an illustrative example for the reason stated above.)


Hypothetical

Q) Have they asked for Neil's (or whoever's) permission?

A) Well, certainly they didn't ask for anyone's permission before their first round, or those people wouldn't have been all confused about the "project".


Q) Do they have the right to use Neil's (or whoever's) posts?

A) That gets tricky, and is discussed after the next question.


Q) Does this seem to you like an invasion of privacy/breach of internet etiquette and/or a possible attempt at increasing their own popularity, content, and/or readership by stealing someone else's words?

A) Well, it does to me.


Now, back to point 2: Do they have the right to use Neil's (or another's) posts?

GUESS, dear readers, where I am going with this. Go on, guess. OK, you got me. Copyright law. Yes, we've been here before. Several times. And because of that, I'm not going to go into it at length (well, that and I'm really tired, and this post is more my immediate thoughts on this shadowy "project" rather than a point-by-point analysis of possible legality). (And I'm also going to insert my traditional "this is not specific legal advice, don't use it as such, etc. etc. this is me thinking and talking about law but I'm not advising you so if you do something based on this I am not liable" bit right here.)

Instead, I will just point out a few VERY BASIC points that I think HuffPost should consider before trying out this sort of scheme, and certainly before announcing its imminent "launch".

1) Copyright protects original works of authorship. Yes, I realize "lololol I ate a sandwich Twitter peeps!" isn't great literature, but I would certainly feel comfortable arguing in a court that something like Thaumatrope is original authorship worthy of the protection and legal rights that accompany copyrighted content. ("Thaumatrope is a twitter fiction magazine for Science Fiction, Fantasy, and Horror fiction under 140 characters." It's contributed to by a roster of different authors.) Pretty sure I would be able to establish that Twitter posts could be found to be original works of authorship, particularly if they are witty and original, the sort of thing that HuffPost would be likely to go after and appropriate for their site.

2) From the U.S. Copyright Office: "When is my work protected?"

"Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

Hey, HuffPost? That INCLUDES things posted on, say, Twitter. Or this journal. Or any internet medium that is used to post original works, really.

3) If material is copyrighted, you need an author's permission to use it if you want to avoid legal headaches. Just, you know, FYI.

4) Yes, I know all about fair use. Including that one of the "fair" uses is news reporting. But as I've written before:

a) fair use is an affirmative DEFENSE, not a right that allows you to use others' works; and

b) you still have to pass the test for the use to be fair.

If I were HuffPost, I'd be wary of elements like point 1 (commercial use? I am sure if HuffPost increases its readership, it makes money) and point 3, amount and substantiality (for instance, even if used in news reporting, you can't just take someone else's work wholesale and use it as your own news report. If you take the heart of the work, even if it's only a small percentage, that can be infringing use).


Now, I *realize* that Twitter is a relatively new thing, so this is slightly new-ish territory, legally, and that, given the 140 character thing, it's not like you can just take, say, 10% of a tweet to avoid point 3 while still using it in a significant manner. And I also realize that there's little chance of any particular person wanting to, say, collect their tweets and republish them, or that HuffPost absconding with tweets would lower the value of them for the author's future compilation or whatever. But look at Sockington the Cat. This dude is making money off of his hilarious tweets about his cat. He's thinking about doing a book. So it's not unheard of. I wouldn't be surprised if Thaumatrope thought about republishing someday, or others. And this isn't even considering those who have worked hard to build a readership by providing a steady stream of interesting news, etc. How uncool is it of HuffPost if they start "news reporting" by taking someone else's news tweets and putting them on their page. There, essentially, they're using someone else's journalistic efforts without paying them. Not only that, they might wind up stealing the readership from someone who's built up a following on Twitter, by aggregating the "important" tweets on their own site. And that's just lame.

Since this is such a new idea, there is still a lot to think about, of course. But in the end, it comes down to 3 things:

1) HuffPost should have thought about this more before trying it, and also, you know, approached it completely differently (AT LEAST ASK PEOPLE FIRST, HELLO.)

2) HuffPost could definitely run into copyright issues here.

3) Let's face it, this just feels wrong and kind of like thievery.