Whose line is it anyway? Social media guidelines part II

Article  \  26 Nov 2013

Social media websites make it easier to share content than ever before.  Re-using and re-mixing other people’s work makes up a great deal of social media content – whether it’s re-posting on Facebook, sharing updates on LinkedIn, re-tweeting on Twitter, or re-pinning on Pinterest.  But, as with any digital media, the ease of copying can often lead to infringement of intellectual property rights.


Take for example the Instagram user who recently posted the entire Star Wars Episode IV movie on the popular image and video sharing platform.  Despite sympathetic media reports, what the user was doing was not ingenious or fair – his posts were not original creations; they were not even ‘remixes’ or ‘mash-ups’ (nothing had been changed).  Instead, the user simply re-recorded and posted an entire movie in 15 second blocks.  The owners of the Star Wars franchise are well known for protecting their intellectual property rights, and it was not surprising that the infringing posts were removed.

Social media companies have become very careful to disclaim responsibility and legal liability for their users’ wrongful actions, in fear of being sued as a conduit or ‘enabler’ of a user’s wrongful activity.  This fear is justified, as a few have been sued over their users’ postings.  For example, Australian blogger Joshua Meggitt issued proceedings against Twitter for ‘publishing’ defamatory statements in early 2012, and US lawyer Jonathan Goldsmith had attempted the same against Facebook in 2010.

Copyright owners have taken similar action against video sharing websites Veoh and Youtube.[1]

Last week, record label Ministry of Sound issued proceedings against music streaming service Spotify, claiming that some users’ Spotify playlists copied Ministry of Sound’s compilations.  Ministry of Sound releases dance hit compilations rather than original music, but claims that the “expertise and creative effort involved” render those compilations original copyright material.  There will be a number of legal issues to unravel in the case, but regardless, Spotify is being sued for its users’ actions.

How does this affect me?

As a result of this kind of threat, the major social media websites have adopted terms and conditions making it clear that any legal liability flows back to the user who posted the content.  Users should take the time to read the relevant terms and conditions that govern their postings
– and importantly, keep up to date with terms as they change.[2]  These may affect users more than they realise, as illustrated by Instagram’s December 2012 updated terms of service, which say that the company could “sell user photos to advertisers without paying them compensation”.[3]

Users should also consider what they are posting.  If it’s not an original post (i.e. has been copied), then extra care is warranted.  If the owner of the material has not relinquished its rights or authorised the re-use of the material, then this is a fairly good indication that it should not be used.

An interesting system implemented by Pinterest is the use of a “no pin” tag, which identifies content that cannot be re-pinned (shared) by other users.  It’s a clever idea that makes the boundaries of use clear, and it will be interesting to see whether other social media websites implement a similar feature.  For now, users of those services will have to decide for themselves whether their re-use is appropriate.

 See our earlier article on third party liability at: http://baldwins.com/isp-liability-for-copyright-infringement-are-dodgy-subscribers-worth-the-risk/
[2] For example: https://twitter.com/tos; www.facebook.com/legal/terms; www.linkedin.com/legal/user-agreement; about.pinterest.com/terms 
[3] Instagram later amended this, following an overwhelmingly negative public response.  See: http://baldwins.com/a-picture-is-worth-a-thousand-dollars/