Paul and Storm

UPDATE: May 13, 1:43 p.m. At least one concern has been answered, regarding Twitpic’s ability to sell deleted items: the ToS does indicate that they will only access user images “in the event of a legal issue”…

You understand and agree, however, that Twitpic may retain, but not display, distribute, or perform, server copies of your media that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. Deleted images are only accessed in the event of a legal issue.

…though when combined with the previous clause that states “any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable”, deletion will not prevent a user pic that’s already been farmed out from being displayed. So in the alien photo scenario, if a user were to delete the image from Twitpic before it was farmed out to an affiliated partner, they would have the sole copyright from that point onward.

Thank you to TwitPic Software/Systems engineer Ryan LeFevre (@MeltingIce) for helping clear that up. The question of Twitpic’s rights within the ToS to sell user content remains fuzzy to me, but I hope it’ll be cleared up as well.

[S] Twitpic to sell user photos and not share proceeds http://bit.ly/klh6X3 ♫ Farewell and adieu, you ladies of Spain ♫

First off: I am not writing to villainize Twitpic, and since tweeting the above link from Slashdot earlier today, I’ve done more research and put extra thought into whether my characterization of Twitpic’s recent change to their ToS was fair.

Short version: yes, and I stand by it. Additional clarification and/or further alteration to Twitpic’s ToS could change my personal assessment about whether using their service is still advisable, but as it stands I will (regrettably) no longer use it.

Although it’s clear from the official statement from founder (and by all accounts terrific guy) Noah Everett that Twitpic is not claiming the copyright on users’ submissions, and that their intent is not to suddenly rebrand Twitpic as a stock photography site featuring user pictures, it does appear that Twitpic is going to profit from at least some users’ content without compensating them.

I’m not going to retread what’s already been said very well (see the above Slashdot link for a more detailed breakdown), but here’s the crux of it:

• Twitpic’s new ToS states that they can “distribute that content on twitpic.com and to our affiliated partners” (emphasis added)
• Twitpic now has a deal with WENN, a photo broker that sells picture publishing rights (primarily by celebrities) to third parties (newspapers/news sites, magazines, etc.)

So what’s the big deal, if you keep your copyright?
As far as Twitpic putting your content on their website, of course it’s okay. How else would the service work? It’s the bit about “affiliated partners” that’s troublesome. Beyond the general oogieness of not knowing where your pictures might end up (yes, it can happen anyway, but it’s not any better from a user’s standpoint if it’s officially sanctioned), there’s a still a fairness issue regarding compensation.

Let’s say an alien ship landed in your neighborhood, and you took a terrific picture of it and loaded it onto Twitpic. As it happens, although there were plenty of other eyewitnesses to authenticate the sighting, you were the only one who got a decent shot of it.

How valuable do you think that snap would be? Yeah, really valuable. And though you retain the copyright, and are free to sell your photo however you wish, because Twitpic has assigned itself the same right (which can extend to its partners as well), who do you think publications are more likely to turn to for the photo? Most likely the agency, who can make it happen fast, and who can undercut your price every time. You get bupkis. Yes, that’s a far-fetched example, but it can be applied to any photo that has demand for it.

But what it comes down to is that although you retain your copyright, its value is potentially greatly diminished.

But WENN is just interested in celebrity photos
Maybe. Maybe not. We’re not privy to Twitpic’s agreement with them, and there’s nothing to say that the terms won’t change over time–particularly if it proves profitable for both parties. Even if they are only interested in celebrity pics, or pics by celebrities, the fact is the person who generated the content is not compensated.

Beyond that, there’s nothing in Twitpic’s ToS to stop them from signing agreements with other organizations who might want other types of user pics, including the stock photography scenario. Soup for them; no soup for you.

Hey, they’ve got to make money, ya freeloader!
True, and I don’t begrudge them making money. They provide a terrific service, and I’d like to see it continue. Paul and I happily pay for a number of services (including Flickr, who you think would have developed a comparable Twitter service by now), and I don’t mind Google putting ads here and there in exchange for using gmail and Google Docs. But in neither of those cases are the companies profiting from my content without compensating me. Harvesting data and possibly intruding on my privacy? Possibly. But I’m not here today to argue those issues.

They’ve been open about their intentions, and haven’t they earned some goodwill to give Twitpic the benefit of the doubt?

Yes and no. All contracts (including ToS) rely to some extent on trust. I do believe that Twitpic’s current intentions are not to screw its user base. But I’ll repeat that if this revenue model proves lucrative, they will expand it to other areas. They’d be foolish not to.

Beyond that, because they retain future rights to your pictures, guess what could happen if they’re bought by Google? Or Apple? Or Microsoft? Or Monty Burns? Or iStockphoto? Yep, so much for Twitpic’s current intentions.

Heck, I don’t care. Twitpic is welcome to sell photos of the sandwich I ate for lunch, my out-of-focus shot of the Grand Canyon, and my dog’s butt if they want.

Cool; as you like. For most it won’t ever matter. But if the NY Times Online does a feature on dog asses and pays Twitpic’s partner DoggyLens $1M for your photo because it’s perfect, I will hear none of yer bellyaching.

You don’t seem to mind when your tweets are featured on other websites or in the news. How is this any different?

Unlike photography, there’s not a monetized market for 140-character funny and/or interesting quips. And we know that if our tweets show up somewhere and they’re properly attributed, it benefits us by bringing new eyeballs our way. (Though it certainly does bother us if our tweets appear somewhere unattributed, or credited to someone else.)

And yeah, I’d probably be more than a little miffed if Twitter contracted with a publisher to put together a “Best of Paul and Storm’s Tweets” coffee table book, and didn’t pay us a cent of the millions it would undoubtedly make. But until Twitter changes their own ToS or habits in a way that gets my dander up, it’s comparing apples to elbows.

Finally, because I believe in constructive bitching, I have several suggestions for Twitpic that could put them in the clear:

1. Makes the third-party publishing rights opt-in. Those who don’t care how their photos are used, or celebrities who benefit from the transaction even if they’re not remunerated, can help contribute to Twitpic’s financial health, enabling them to continue to provide an excellent service.
2. Offer a subscription that would not include those encumbrances. Would I pay for it? It’d depend on whether or not their service is worth the premium over their competitors, who at this point still do not charge a fee.
3. Be more transparent about agreements with affiliated partners. Yeah, not likely, since it’d give competitors a glimpse at Twitpic’s playbook. And even with more visibility, it doesn’t solve all of the potential future conflicts. But it would go a long way towards maintaining trust with the user base.
4. Offer some amount of (opt-in) profit-sharing, if only a modest amount. Even 10% would be better than nothing, and in the alien contact scenario it’d be a winner all around. And it would be “found money” for most users (i.e. they don’t ordinarily earn money from their photos), the overwhelming majority of people would probably opt in.

But by and large, I expect that most people won’t care. Or if they do, it’ll play out like the Facebook privacy outrage that crops up now and then, with the level of umbrage decreasing each time. It is, after all, a changing informational world, and what’s “right” and “fair” is shifting ground.

Then again, unlike something as ephemeral as “privacy”, Twitpic’s ToS change involves potential money, which is something that everyone understands all too well.

Once again, I didn’t come to villainize Twitpic, and I believe that I’ve been fair. But if there are facts that I’ve missed, please do talk me down. Because I really do think that Twitpic has a good thing going, and I’ll take no joy in saying farewell and adieu.

“S”