Lawyer and self-professed 'copyright geek' Mike Dunford recently drew attention to the Associated Press's controversial requests to use content posted on social media. He shares a copy of the social media release form the AP asks social media users to agree to, breaking down each part with an explanation and issues related to them.
Though some of the AP's presumed concerns are legitimate, according to Dunford, he ultimately claims that the release terms are 'abusive across the board. '
The controversy started when lawyer Jay Mashall Wolman shared a tweet from Associated Press editor R. J. Rico, which has since been deleted, bringing attention to the AP's social media release form. Wolman then shared several other similar content requests made by the Associated Press and its employees, each asking different social media users whether they took the content that caught the AP's attention, as well as whether the AP could use it for free.
The requests are joined by an image of the AP's social media release form, which asks the person who captured the content to read the message, then to respond to the message containing the form with an agreement to the terms. The AP's social media release form claims for itself:
. . . world-wide, non-exclusive right to (and all consents to) use, reproduce, prepare derivative works of, edit, translate, distribute, publicly perform, and publicly display the content throughout the world in perpetuity by any and all means now known or hereafter created in all media now known or hereafter created; an AP shall further have the right to license these right to others. . .
In addition, the social media release form includes a section that requires the user to agree to be responsible for any copyright matters that may result from the use of the content by AP or any entity it licenses the content to, stating:
[The social media user agrees that] you are the copyright owner or the copyright owner's authorized agent and that you are fully entitled to grant these rights in favor of AP and that there is no agreement or other restriction preventing this grant of rights. You agree to indemnify and hold harmless the AP and its licensees from and against any claims, losses, liabilities, damages, costs and expenses arising from any breach or alleged breach of these representations and warranties.
Wolman tagged multiple people in his tweets, including Dunford, who gave a long commentary on the release form in a tweet thread of his own.
It's clear that this is corporate policy - Jay has examples going back to 2015.
This morning, I'd like to talk about 2 things:
The extent of AP's legitimate concerns, and why their approach to addressing those concerns is abusive and unethical. https://t. co/GNEQmEI8ie
— Mike Dunford (@questauthority) May 17, 2020
Dunford points out that though Twitter's terms may allow the Associated Press to embed these tweets in its online articles without getting prior permission, he 'wouldn't want to rely entirely on that. ' There have been examples of controversy over publications embedding tweeted content without getting explicit permission to do so. Dunford also points out that embedding isn't useful for the AP when it comes to video and printed content.
At the same time, the cameras we all carry around mean that videos and pictures people post to twitter are often the first, and sometimes only, images of newsworthy events. So AP wants to be able to use them. And, like any good business, the lower the cost, the better.
— Mike Dunford (@questauthority) May 17, 2020
Requesting that a social media user allow a major news company to use the content for free is problematic when it comes to paying content creators for their works. However, Dunford zeroes in on the social media release form terms, claiming that they are 'MUCH more of an issue' than simply asking to use content without paying for it.
Dunford points out that the AP and its lawyers are at 'a substantial advantage' over the unrepresented social media user when it comes to securing content rights. Digging into the actual terms, Dunford points out multiple concerns, including that the AP's release form gives it the right to license the social media user's content and it gets the non-exclusive right to forever use the image as if it owns it. 'It's abusive,' Dunford says.
The biggest concerns start with the second paragraph, however, with Dunford stating in his tweets:
Seriously, just screw them. They're getting something of value for nothing, and they want the person giving them that to assume risk on top of giving them a free license.
Hell with that, @AP should bear that risk. All of it.
— Mike Dunford (@questauthority) May 17, 2020
National Press Photographers Association (NPAA) General Counsel Mickey Osterreicher weighed in on the matter with a tweet of his own, encouraging content creators to refrain from agreeing to terms like this:
We appreciate folks posting these. Only solution to such rights grabs - if no one agrees to these terms, organizations will be forced to change the TOS. Problem is most people do not read or understand before agreeing to terms & others don’t seek/want payment for their work
— Mickey Osterreicher (@nppalawyer) May 17, 2020
Wolman found examples of AP employees tweeting the social media release form dating back to 2015.
For social media users who fail to see the potential harm in accepting terms like this, an anonymous legal Twitter account allegedly belonging to an Australian lawyer detailed some of the problems users may encounter, including the fact that owning the copyright to the content doesn't protect the user against potentially being sued over it in the future.
First off I note: lawyers are cautious. We never see the handshake deals that work out. Nobody calls and says "I just want you to know I had a handshake contract and it went well. " For all we know, these only end in pain and six figure legal bills. Best to not be an example.
— Wolf Lawyer (@thewolflawyer) May 17, 2020
Wolf points out, among many other things:
You've heard of bots that do automated DMCA takedowns. Imagine that there's an automated DMCA takedown of your video. Imagine that results in legal action over who has the rights to the video. You don't have to imagine too hard, it happens all the time.
Now imagine that you've agreed to indemnify the AP for the costs of bringing/defending those proceedings.
Wolf concludes his commentary with a solid point, stating, 'Can't afford a lawyer? Then you definitely can't afford to grant indemnity. ' The Associated Press has not commented on the criticism and concerns.
. dpreview.com2020-5-19 21:28