Informationoverlord

“And I lie awake and dream at night, sometimes I even sleep, then I dream of her behind the wall [of sleep]” - The Smithereens - Behind the wall of sleep

And so it came to pass …

This next couple of weeks will see the Times and Sunday Times disappear behind a paywall. It is part of an attempt by the News Corp owned titles to try and generate a steady income to help pay for the continuation of quality journalism. At least, that is the argument.

Visitors to the sites – they will now be separate sites – will be asked to part with either 1 pound a day or two pounds a week to access the content [Those who subscribe to the hard-copy print version will get free access as part of that subscription]

So, why the move?

The past 18 months has seen various people on News Corp including both Rupert and James Murdoch pointing to the number of newspapers that are now going to the wall – especially in the US, but most people would also argue that even in the UK a number of papers are walking a tightrope over being able to continue to run a print newspaper.

For most of these 18 months two targets have often been in the cross-hairs of News Corp – Google and the BBC. Indeed just a couple of weeks ago James Murdoch whilst giving a speech to inaugurate University College London’s new Centre for Digital Humanities, reminded us of that.

“[J]ournalism – print and digital – faces trouble. In the last year in the U.S. alone, 109 newspapers shut down or stopped publishing a print edition, leaving many cities without a single paper. The reasons are not hard to understand. Search companies and aggregators skim content from a thousand sources, sell it to clients, scoop up advertising revenues and put little or nothing back into professional newsgathering.” [ It’s Google’s fault - Check]

“Second, many of the pressures on content – journalism included – are caused by governments. Frankly, states provide a level of subsidised news that is: incredibly high; comprehensive; and well funded.” [ It’s the BBC’s fault - Check]

So the solution is a paywall??

Search and yea shall not find…

The approach the Times and Sunday Times are taking – and one which frankly seems like suicide to me – is to cut off the supply to search engines and news aggregators all together. Yes, finally, after all the endless and tiresome bitching about how Google and others were ’stealing their content’ on the one hand, whilsy at the same time not just adding a robot.text file onto their sites to stop them doing so, now they will be.[Of course, when they started bitching about this last year News Corp still owned Rotten Tomatoes – the film review site which did for film reviews exactly what News Corp were complaining others like goggle news where doing to their content. This has since been sold to Flixster]

So there will be no taster or brief excerpts of articles on the home page and no way to know what content is on the site/in the papers without buying it in some form. So, from next week I am not going to even know if there is an article in the Times I should read. How does that do anything other than target just loyal times readers. We have a few people that might like us, sod everyone else, this seems to be saying.

Assistant editor Tom Whitwell added on the search issue: “The clarity is something that was very important. If you’re asking someone to pay for something, it has to be very clear what they’re paying for.”

Quite.

I have signed up to have a look and the new lay-out is very ‘paper’ like. It looks nice, but not sure I could see myself paying even two quid just so I could access it every day – especially when I still have quality reporting outside the paywall - and, of course, the BBC for the latest ‘News’.

So, this move is about current PRINT readers, and a handfull of people online who ‘value’ the brand. It’s about proping up the traditional print part of the business, and very little to do with protecting quality journalism or anything else.

Sunday Times editor John Witherow at a recording of Media Show (Radio4) which I attended recently admitted the company expected to loose 90% plus of their online traffic as a result on the move. He seemed happy that that small dedicated number would provide through subscriptions and through selling more targeted advertising to advertisers behind the paywall, would prove a success.

The all or nothing approach – which wont even offer snippets for free or indeed any ‘free’ articles - just seems like a bad way to try and sure up traditional print sales.

Far from increasing value in the brand, I fear this could backfire and result in the Times becoming the forgotten son online very quickly. This will result in some form of deal with Google and co to allow indexing of content or at least headlines behind the paywall, to at minimum to keep people online aware that there is content on particular topics in the papers.

Still, on the other side of the coin is advertising revenue alone and other partnerships really going to be enough outside of the paywall? At the same Media Show recording the Guardian’ Alan Rusbridger said he could see a time where there Guardian no longer existed at all in print format – and that time was not all that far in the distance. He also said that ad revenues were on the rise and by partnering with other sites to act as a portal for quality reporting meant he was confident the paper would survive, and that whilst he loved print, that doing so as an online only proposition was not necessarily a bad thing.

Who is right? Both? Neither?

Even Rusbridger admitted that if the Times’ move proved a success there would be huge pressure on all others - including the Guardian - to follow suit.

I don’t need no wall around me…

Instinctively, I have to admit I am against the idea of paywalls for all the reasons often put forward by those against them - in an online world where you want to be part of the conversation and part of wider social network –especially in an age of Facebook, Twitter, etc cutting yourself off from that, just seems counter-productive. At the same time I do recognise the need to pay and invest in good journalism and in getting reporters on the ground around the world etc.

And being against paywalls doesn’t mean that I wouldn’t pay for certain access and content. I buy a newspaper every day now, so I’m already happy to pay for my news.

My consumption of news online however is much different from how I consume offline and from a variety of sources: BBC (the elephant in the room of course) blogs, specialist websites, and newspaper websites: The Guardian, Telegraph, Times, FT and New York Times get looked at most days. If they all went behind Paywall’s would I take out a subscription to each of them? One of them? None of them?

It would depend what I was getting of course, but my choice could quite possibily be the latter. I’d continue to read a print paper daily – and even if that came with ‘online access’ I wouldn’t be able to take advantage of it because, I like to support local business and I can only do that by buying my paper every day from my local shop. That is worth more to more than saving a couple of quid and getting online access.

And here’s the thing. I paid to buy the Guardian’s iPhone app to access their content on my iPhone. I could have continued to access the content via the browser – which was perfectly fine, but I liked how the content access experience had been maximized for the device so I parted with the cash. But because of screen size and other things I wouldn’t sit and ‘read’ this on the way to work, for example. It was always more for ‘quick reads’ when watch TV or when out and about. Would I if it were on an iPad or similar? I don’t know, but at the moment I still doubt it.

Also, like with the web in general these days, I have personalised the app to show me certain kinds of news as default: Main, Media, Tech, Sport.

This is great, but at the same time – in extreme - it leads to a cultural blindness where we only every read or look at the news that ‘already’ interests us. One of the things I still love about reading an actual physical newspaper is the serendipity of your eye being caught be an article on a topic you might not have previously been interested in, or an investigative report on something that jars your social conscience.

iPad: - iCame, iSaw, iConquered ??

But on the iPad newspapers look great … it’s a game changer …. Blah, blah, blah.

It is no coincidence that the launch of the iPad in the Uk is happening at same time as the Times’ move behind the paywall. And, The Times look VERY nice on the iPad. But is the iPad or any ‘tablet’ really the saviour?

It will certainly give publishers the potential to deliver content in a way that is more ‘browse-able and readable’ than viewing on a PC or laptop etc, but people are going have to buy an awful lot of them. You’ll need Mr Times and Mrs Telegraph to buy one each and sign up respectively x several million.

The question id do you want people reading your ‘paper’ or your ‘content’. The online world has made these different things for many of us, as I said before I usually read article from a variety of ‘newspapers’ each day, I’m no longer loyal to just one source, and I’m not sure I could ever go back to doing so online.

I wish the Times and Sunday Times well, but I fear that their all or nothing approach could be knocking several long nails into their own coffin.

Porn publisher Perfect 10 has been back in court again. After failed attempts to get the courts to rule that Google, Amazon, Microsoft and others infringed their copyright by offering thumbnail copies of the images – usually uploaded or stored on other people’s websites, they have now failed in an attempt to get an injunction against German file-hosting service Rapidshare.

Perfect 10 claims by hosting copies of their content on their servers they are directly infringing their copyright, violating their distribution rights, and are additional guilty of contributory infringement.

Users of Rapidshare can upload files to the site and get an url which they can use to share access to that content with friends etc. Rapidshare does not offer a search facility or offer an index of files stored on its servers.

The District Court for Southern District of California found that as Rapidhsare did not make files available and index them in a manner that would make searching for content useful, it is not like Napster or other p2p services and is therefore not making infringing material available in the same way, and the court “declines to hold Rapidshare liable for direct infringement on a theory of deemed distribution.”

The Court did find that Rapidsahre had specific knowledge of direct infringement by some of its users – due to being contacted by Perfect 10, however the court found rapidshare was not contributorily liable because far from the evidence showing that rapidshare was doing nothing to address to presence of this content on its servers but that “[r]ather, the evidence suggests that RapidShare is using information provided by Plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files.”

The Court did however say that rapidshare could not currently rely on any DCMA safe harbor protection as it yet to give the US copyright office specific information regarding its designated agent as specified in the legislation.

On Perfect 10’s claim that without injunctive relief, it will be forced into bankruptcy - an argument it used in its case against Google too, If I rememer rightly - Judge Huff responded that the evidence before her didn’t back up this claim and actually showed Perfect 10’s “apparent lack of interest in self-help measures and its delay in bringing this action.” Ouch. The motion for preliminary injunction was denied

The EU’s Article 29 Data Protection Working Party has sent public letters to the three major search engines – Google , Microsoft  and Yahoo!  saying that although it welcomes their efforts to bring their data retention policies in line with the law, they are all still in breach of the EU’s data protection directive.

The Working party tells Google that it should reduce the period at which it “anonymizes” IP addresses in it’s server logs to 6 months instead of the 9 months it agreed to reduce them to. It also states that Google’s method of anonymisation is not adequate – Google deletes the last octet of the IP-addresses.

According to the Working Party ’such a partial deletion does not prevent identifiability of data subjects.’ In addition to this, They were not happy with Google’s cookie retention practices, where Google retains cookies for a period of 18 months. ‘This would allow for the correlation of individual search queries for a considerable length of time. It also appears to allow for easy retrieval of IP-addresses, every time a user makes a new query within those 18 months.’ The Working party letter states.

The Working party is bit more gentle on Microsoft and applauded its willingness to reduce the retention period of cookies and IP addresses to 6 months, pending on the willingness of other search engines to follow suit. However, like Google, Microsoft retains Cookie date for 18 months, which again still left room for ‘the cross-matching of search queries for a considerable length of time.’ The Working party also questioned the effectiveness of Microsoft’s anonymisation claims.

Yahoo! had pledged to reduce their retention time to 90 days with limited exceptions for fraud, security, and legal obligations, which pleased the Working party, who welcomed the move to deleting the full IP-address from the first full dataset after 90 days instead of just deleting the last octet, but again there were concerns. ‘a partial deletion of the personal data contained in search logs does not constitute true anonymisation.’ the Working party points out. Also,as with Google and Microsoft it says they were not provided with enough information to technically assess the quality of their anonymisation policy.

Here there was a clear call to all three search engines to review their anonymisation claims and make the process verifiable, preferably by developing a credible audit process involving an external and independent auditing entity. ‘The actual techniques of anonymisation deserve an open debate, open to  public scrutiny, in light of the expanding body of research on the failures of anonymisation.’, states the Working party.

The Working party also recognises the transatlantic of the issue and states that it has forwarded its concerns to the Federal Trade Commission (FTC), and asked the FTC to use its authority to examine the compatibility of this behaviour with section 5 of the Federal Trade Commission Act.

It’s good how long you can get away with breaking the law isn’t it. Look forward to the responses from Google and Co.

In an interesting - and long running - trademark dilution case, the US Court of Appeal has held that the use of the name “Victor’s Little Secret” or “Victor’s Secret” by a small retail store in a mall in Elizabethtown, Kentucky, owned by Victor Moseley, that sells assorted merchandise, including “sex toys” and other sexually oriented products, because it is sex related — disparages and tends to reduce the positive associations and the “selling power” of the “Victoria’s Secret” trademark.

The case is of interest because the US Supreme Court has already reversed a previous opinion of the same Court, in this same case the first time the appeal court affirmed an injunction against “Victor’s Little Secret” issued by the District Court. The Supreme Court held that a trademark owner had to show “actual harm” rather than merely a “likelihood” of harm, and Victoria’s secret had failed to do so.

On remand to the District Court from the Supreme Court after the 2003 reversal, no new evidence was introduced, and the District Court reconsidered the case based on the same evidence but under the Trademark Dilution Revision Act of 2006 – which amended the Federal Trademark Dilution Act of 1995, on which the first case was decided.

The new act’s language – introduced as a result of this case introduced new standards for measuring trademark “dilution by tarnishment” specifically that the standard for proving a dilution claim is “likelihood of dilution” and that both dilution by blurring and dilution by tarnishment are actionable.

Using this new standard, and Congress’ implied intention to reduce the burden of proof on a trademark holder, the Appeal court stated the phrase “likely to cause dilution” used in the new statute significantly changed the meaning of the law from “causes actual harm” under the pre-existing law. Therefore it held that even without any evidence that any consumers felt that “Victor’s Little Secret” tarnished Victoria’s Secret, the law should now be should now be interpreted to create “a kind of rebuttable presumption, or at least a very strong inference, that a new mark used to sell sex-related products is likely to tarnish a famous mark if there is a clear semantic association between the two.”

In her dissent of the majority opinion, Judge Moore stated that whilst she agreed there is a clear association between the two marks, the important point was whether that association is likely to harm Victoria’s Secret’s reputation. On the evidence before the court she found that Victoria’s Secret presented no probative evidence that anyone is likely to think less of Victoria’s Secret as a result of “Victor’s Little Secret” and cannot therefore prevail on its claim of dilution by tarnishment.

I’m with Judge Moore on this one. It is hard to see how one shop – now operating under the name Cathy’s Little Secret – is going to tarnish the reputation of a global brand like Victoria’s Secret. Yes I am sure Victor was thinking what a fun play on words it would be, but seriously, taking the guy to court? That action in itself does more to harm the reputation and any positive associations I might have had with Victoria’s Secret.

Oh, and yes, god forbid that anyone would start associating Victoria’s Secret with sex …

It seem likely that the Supreme Court will once again be called upon to make the final judgement in this case, and let’s hope they throw it back where it belongs.

Was greatly amused today when I came across two blog posts here and here on the Bloggerheads blog about our new Secretary of State for Culture, Olympics, Media & Sport, Jeremy Hunt, and his interesting approach to blogging and Tweeting.

It seem Jeremy just doesn’t really GET IT. He thinks that the way you do these things is to periodically delete old content all together from your blog and your twitter accounts. No, not random one off items but the whole lot, wholesale. Now this is from a man pre-election who said he’d love to be Minister for Technology and who will at least be partly responsible for it in his DCMS role. Apparently as far as his blog goes he only maintains a recent/immediate ‘archive’.

Rumour has it that the Con-Dem nation govt have been trialling the use of a mission impossible app for their tweets and blogs, allowing them to self distruct after a given timeframe. Think Mr Hunt is one of their beta testers.

I’m a qualified librarian – a lot of you reading will already know that. I spent almost 10 years working in public libraries and think public libraries are still hugely important in our society. I’m also a fan of comedy and humour, including material that is occasionally close to the bone. I’m a firm believer that no topic should be taboo as far as comedy is concerned.

Why am I telling you this? I followed a link on Twitter (via CILIPInfo) to a piece on US Library Journal site concerning a line in a recent Jay Leno monologue where he made light of proposed library cuts in California. Leno said “People here in Los Angeles are upset that the mayor’s proposed plan to cut the budget of libraries… This could affect as many as nine people.”

You may or not find this a funny line as written or as said by Jay Leno. But would you as a Librarian then write to Mr Leno to tell him it wasn’t funny and that he was making light of a serious situation? Well, City Librarian Martín Gómez did. He wrote a letter telling Leno how he was ‘dismayed’ by his attempt to find humour in the proposed cuts, and that his nine people jibe “added insult to injury”. He added: “Despite what you may think, these cuts are no laughing matter to the 17 million people who use the city’s libraries each year.”

Now I am pleased that Mr Gómez cares deeply for the plight of Los Angeles libraries, really, I am. However, If I were in that situation I’d also be quite embarrassed to have a boss who plainly does not understand the concept of comedy and humour. (the LJ seemingly doesn’t either: “Does Tonight Show host Jay Leno think libraries are worth much? Apparently not”).

I don’t think the Leno line is particularly funny but should it be off limits to try and make light of it for comedic value? No, don’t think so. Leno is not a news reporter, he is not there to report ‘the facts’, he is there to try and get a laugh. And no-one who was watching would have been sitting there thinking - wow, only nine people use the libraries, yes, let’s axe them.

If I were Leno I’d respond on air - apologise and say “It seems I said it could affect as many as nine people. I accept that was wrong. Apparently it is 17 people.”

I found this delightful animated promo for Vinyl a Spring Seasonal beer brewed by Vermont’s Magic Hat Brewery online today (Via LaughingSquid) and found myself thinking about whether or not they could run this as an ad on UK TV. One of those questions I’m sure you all think of when you see things like this. NO? Just me then. I Love the name of the beer and the whole tone of the ad.

It would potentially run into problems in the UK however under the TV and Radio Advertising Standards Codes (BCAP Codes). Section 11.8.2(a) , which deal with alcohol ads, states that ” Advertisements for alcoholic drinks must not be likely to appeal strongly to people under 18, in particular by reflecting or being associated with youth culture.”

With regulators erring on side of caution I would not be surprised to see them finding that the combined use of a child’s record player and toy fairies in this promo as being caught by their ‘ be likely to appeal strongly to people under 18′ rule.

As for me, I just want to try the beer.

The Press Complaints Commission have cleared the mazine Loaded of breaching the privacy of a young women with an article headlined “Wanted! The Epic Boobs girl!”, published in the February 2010 edition of Loaded. Whilst the PCC commented on the questionable tastefulness of the article - which displayed pictures of the girl, then aged 15, which were originally posted to her Bebo site - they concluded that the information, in the same form as published in the magazine, was widely available on the internet to such an extent [The complainant’s photograph, for example, came up in the top three in a Google image search on the word “boobs”. At the time of complaint, there were 1,760,000 matches that related to her and 203,000 image matches of her as the “Epic Boobs” girl.] that its republication did not raise a breach of the Code.

I’m with the PCC for a change on this one. Whilst having some sympathy for the young lady in question, the ‘damage’ was clearly done before when her Bebo pictures got into the wider internet community, and whoever shared them originally - it is unclear whether her photos were originally open for all to see.

I do however also agree with the PCC that Loaded’s decision to publish pictures of a 15 year old girl as part of an attempt to get the woman in question to pose for them now is nothing short of sleazy.

It’s been a while since there was any CIPA law to get my teeth into – that’s the US’s Children’s Internet Protection Act. But a State law case in Washington has once again put it and the issue of using filters to block content in public libraries in the spotlight.

Last week the Washington State Supreme Court ruled by a 6-3 majority that a local library’s policy of filtering various categories of web content and of not disabling those filter at the request of adult patrons was not a breach of Article I, section 5 of the State Constitution, which says that “[e]very person may freely speak, write and publish on all subjects, being responsible for abuse of that right.” The right is widely accepted to encompasses the freedom to read as well.

North Central Regional Library District (NCRL) is required to certify its compliance with CIPA in order to get discounted internet connection under the Library Services and Technology Act and the eRate program under the Communications Act 1996. To qualify for these discounts Libraries must install filtering software on ALL their computers to block material ‘harmful to minors’.

The plaintiffs in the case argued that the filtering was overbroad and constituted prior restraint and an impermissible content based restriction of free speech. The Court, citing the majority in the US Supreme Court’s decision in US v ALA, said it would be a mistake to extend prior restraint to the context of public libraries, as prior restraint seeks to prohibit future speech rather than speech that has occurred and that a library’s decision to use filtering software is a collection decision, not a restraint on speech. Just as they would choose not to purchase books, journals – such as pornographic ones – for their physical collection, filters allowed them to do the same for internet content.

Libraries the court argues have no obligation to provide universal coverage of all constitutionally protected speech. Due to the vast amount of content on the internet it is entirely reasonable to ‘exclude certain categories of content, without making individualised judgement that everything they do make available has requisite and appropriate quality’. Thus the majority concluded ” NCRL’s filtering policy, when applied, is not comparable to removal of items from NCRL’s collection, but rather acquisition of materials to add to its collection. NCRL has made the only kind of realistic choice of materials that is possible without unduly and unnecessarily curtailing the information available to a bare trickle — or a few drops — of the vast river of information available on the Internet.”

On the question of overblocking the court once again cited the majority in US v ALA and said the constitutional issue is ‘dispelled’ if the material that is erroneously blocked is easily unblocked at the request of an adult, and they point to a process where a patron may email NCRL administrators to ask that the blocking of a certain page/site is manually overridden. Examples provided showed this was done within 1-3 days. Because of this the court concluded “a public library may filter internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon request of an adult library patron.”

Whilst reading all this, whilst you might not agree with the result it is hard not to find a logic – maybe even a convincing and balance logic in the argument. However, if we actually look at CIPA and the US Supreme Court decision we start to see cracks in the Washington Court’s majority view.

First off, CIPA doesn’t deal with text – at all : as pointed out in the dissenting opinions of Judges Stevens and Souter, in US v ALA, the Act deals with ‘visual depictions’ only.

Section 1721(b) of CIPA requires public libraries that participate in the federal e-rate program to certify to the FCC that they are:
‘(i) enforcing a policy of internet safety that includes the operation of a technology protection measure with respect to computers with internet access that protects against access through such computers to visual depictions that are (I) obscene; or (II) child pornography.’

Even if it did require text to be blocked CIPA only says libraries may ‘ the technology protection measure’, not that they must; gives no time frame for this to happen and forces adult patrons to justify their ‘bona fide’ and ‘lawful’ purpose for viewing a site/content that is blocked.

As pointed out by Judge Chambers, writing the dissent in the Washington case , eight of the 12 US Supreme Court justices found the ability of a patron to disable the filter constitutionally critical to finding CIPA lawful. Two argued that if libraries failed to remove filters at an adult’s request ‘without significant delay’ a library patron could sue on constitutional grounds.

On the issue of whether filtering was akin to book buying decision the dissenting opinion of Judge Souter in US v ALA is also worth repeating. He pointed out that there is a big difference between deciding whether to buy a book, and actually buying it and then blocking access to parts of it. He suggested that the libraries in question had already made the purchasing decision to buy the computers and/or connect to the internet. He likened the subsequent censoring of the internet’s content to that of a library ‘buying an encyclopaedia and then cutting out pages with anything thought to be unsuitable for adults’.

NCRL put forward no compelling reason in this case why filters could not be disabled on request for adult patrons, and the court’s opinion misses the importance placed on this, even by a large party of the majority in US v ALA. I hope the plaintiffs in this case appeal this case further arguing that NCRL is not in compliance with its responsibilities under CIPA.

Photojournalist Daniel Morel was surprised when he saw photos he had taken in Haiti – showing the devastation after the earthquake - appearing in various publications credited to Associated Press (AFP) and Lisandro Suero. He sent cease and desist letters asking the AFP and other to stop using his photographs without his permission. AFP claimed they ceased publication of the images but stated Morel continued to make unreasonable demands that amount to an ‘antagonistic assertion of rights’. AFP responded by filing a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement.

What happened?

According to Morel – a well know and award winning photographer, who amusingly previously worked for AFP for 14 years, up until 2004. - he had taken the photos and a friend advised him he coul get them ‘out there’ by uploading some of his photos and sharing them on Twitter using the TwitPic service. Suero, another ‘photographer’ copied the images to his own account and the licenced these to the AFP who in turn licenced them to Getty Images.

AFP – who don’t mention Suero at all in their declaratory judgment complaint - claim that it doesn’t matter if the photos are really Morels as it still had a right to use them as Twitter’s terms of service allow it to do so. It says this despite the fact that the photos were uploaded to Twitpic, which is actually a separate service, with its own terms of services – which state “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites All images uploaded are copyright © their respective owners.”- and it is also a separate company to Twitter [Indeed, nowhere in the complaint is Twitpic mentioned at all].

According the them Morel provided a nonexclusive licence to use his photographs when he posted them to the site. They also claim that by contacting AFP customers and asserting his copyright over the photos he has engaged in ‘unscrupulous business practices’.

AFP points out that Twitters terms stated that by posting photos to the service Morel was granting Twitter a ‘worldwide, non-exclusive, royalty-free licence, with the right to sub-licence others, to use, copy publish, display and distribute those photographs’

Indeed Twitters terms do say:
” By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the 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).”

However, they also state: “You retain your rights to any Content you submit, post or display on or through the Services.” And they further clarify the above rights by adding ” This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.”

Now even if you accept the AFP’s position on the photos, the AFP did not licence the content from Twitter, and under their argument the non-exclusive, royalty-free license Morel was agreeing to was with Twitter, and therefore the rights to licence that content is theirs, and no-one elses. Nowhere in their terms does it grant other parties a exclusive, royalty-free license to re-use anything found on Twitter. They say:

“You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. “

Very clear that the content is only shared with companies that partner with Twitter, which as they don’t mention it in their pleadings, one concludes that the AFP obviously aren’t such a partner.

Not just satisfied with that AFP also want a finding of defamation against Morel due to his continued assertions that AFP acted without a licence and infringed his copyrights, which AFP proclaim were false or made “with reckless disregard of whether they were false”

As one might expect Mr Morel sees things a bit differently.

He claims when he posted the first pics on Twitpic he states received several requested for rights to buy/publish the images from the world’s media – including from AFP, who at the same time were in contact with Mr Suero about ‘his’ pictures, which when they couldn’t immediately get hold of Morel went ahead and download the photos from Mr Suero’s account – even though they could not get hold of him either. As Morel attests they did not seem to do anything to verify the authenticity of the imagery or the accuracy of the source.

Shortly after the AFP try to contact Morel again and realising the photos are his, arrange to get the photo credits changed – although evidence provide by Morel show that several of his images were still being distributed and reprinted with either ATP/Getty and or Suero’s name attached two months after ATP had claimed to have done this.

Morel claims AFP knew the images were his, continued to use and licence them for use by others and indeed encourage that use for their own benefit. He is asking the court to send the case to trial to let a jury hear his copyright claims against AFP, Getty and others.

I can’t see this going any other way than AFP et al settling this case out of court. If it goes to trial they’ll get a royal spanking from a jury