Tweeting a joke can be no joke

Tweet withheld

Reports emerged late last week that Twitter is deleting tweets that copy another tweeter’s jokes.

The Verge reports on a writer’s request to Twitter to remove a tweet that used her content (a joke) without permission and thus infringed her intellectual property rights:

I simply explained to Twitter that as a freelance writer I make my living writing jokes (and I use some of my tweets to test out jokes in my other writing). I then explained that as such, the jokes are my intellectual property, and that the users in question did not have my permission to repost them without giving me credit.

The Verge says that Twitter did the take-down under the DCMA (Digital Millennium Copyright Act), a part of US copyright law introduced in 1998. It’s a complex piece of legislation but very broadly, it supports the rights of copyright holders to control access to and downstream use of their content. It’s controversial as it threatens the concept of fair use under US copyright law, among other things. (You can read more about DCMA on the US government’s copyright website.)

I am a bit nonplussed that such firm action is happening now as plagiarising someone’s content has been part of the Twitter landscape since Twitter started in 2006. That’s not to say it’s been okay to do that (it’s not okay), I’m just wondering why this has come up only now and about jokes rather than anything more substantive.

And these examples are about using someone else’s content as if it is yours – surely common sense would ring your alarm bell on that – and all the examples I’ve seen were original tweets not retweets.

Still, it is interesting and illustrates that copyright law does apply to anything you publish anywhere, even Twitter, and even a joke, and a takedown will happen if Twitter thinks your complaint is valid.

Equally interesting is the jurisdiction. DCMA is a US law – how will that work in other jurisdictions that are not subject to a US law like copyright? Here in the UK for instance?

I suppose in theory if you’re in, say, the UK or China or Brazil, you could go ahead and use someone else’s joke in your tweet and not worry about any US law. Twitter can still take it down if the creator of that joke complains to Twitter and there’s probably little you can do about it other than sue Twitter. Good luck!

Twitter joke

In thinking about this matter of jurisdiction, a little searching found Can You Copyright A Tweet?,  a most interesting post on the TechnoLlama blog in January that discusses this very topic from a broad European perspective.

On the matter of a tweet, ie, text up to 140 characters:

European copyright law does not have a minimal limit on what constitutes a protected copyright work. For example, the EU Copyright Directive 2001/29/EC makes it clear in Art 2 that the reproduction “in whole or in part” of a work is to be considered an infringement, not stating a minimum amount for what is “in whole or in part”. It has generally been accepted in case law that the copying of a part of a work has to be substantial in order to infringe, but similarly this is a very subjective test, as what makes up a substantial element of the work is left for the court to decide. The broad language in Art 2 led to the Court of Justice of the European Union to establish a very minimal definition for what is an original work. In Infopaq (Case C-5/08) the CJEU says that a work is original if it is the author’s “own intellectual creation”.

And:

Initially, if a tweet is protected by copyright, then its unauthorised reproduction “in whole or in part” would be copyright infringement. If I write a joke and it is copied in whole by someone else, then in theory I could sue for copyright infringement. But what about retweets? This is slightly trickier, as it is an important feature of twitter that makes the service richer. My own solution (and I am happy to be proven wrong here) is that any public account gives other users an implied licence to retweet the work. But what about non-automatic retweets, such as using the format: RT @technollama “I for one welcome our new 3D-printed Bitcoin drone overlords #yeswearethatold”. In my opinion, this would also be fine as long as it is clearly attributed, but I have no legal basis for the opinion other than it is common practice in the medium.

It is my firm belief that a large number of tweets in Europe are protected by copyright, and it is only a matter of time until this is tested in a case.

And intriguingly:

By the way, my tweets are licensed under a CC licence, so feel free to reproduce them as you see fit.

That’s a cat among the legal pigeons!

Why Magna Carta matters

Scales of Justice

Today, June 15, 2015, marks the 800th anniversary of the sealing of the Magna Carta in 1215, a document that to this day is widely considered part of the so-called unwritten constitution of the United Kingdom; and continues to be honoured in the United States as an antecedent of the US Constitution and Bill of Rights.

While there still are many voices who question the truth of what exactly happened on that day in 1215, and what led up to and happened after it – notably this good ‘reality assessment’ by historian, journalist, author and barrister Dominic Selwood – the fact remains that Magna Carta is widely seen as a foundational event in the development of democracy that we understand today.

As the British Library notes:

Although Magna Carta contained 63 clauses when it was first granted, only three of those remain part of English law. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.

This clause was given no particular prominence in 1215, but its intrinsic adaptability has allowed succeeding generations to reinterpret it for their own purposes. In the 14th century Parliament saw it as guaranteeing trial by jury; in the 17th century Sir Edward Coke (1552-1634) interpreted it as a declaration of individual liberty in his conflict with the early Stuart kings; and it has echoes in the American Bill of Rights (1791) and the Universal Declaration of Human Rights (1948).

Beliefs or ideals that are worth supporting.

RunnymedeSee also: Magna Carta: The foundation of modern democracy – my account of visiting Runnymede, the site near Windsor of the sealing of the Magna Carta by King John  in 1215, with my friend and podcasting partner Shel Holtz when he visited the UK last October.

“And so we strolled across the meadow on a beautifully sunny and unseasonably mild October morning to be at the place that marks a milestone in history that has had a direct influence on the fortunes of many countries over the centuries.

Without doubt, this place is one of major significance yet has none of the glitz or shallow commercialism that afflict so many places of historic interest.

The site where King John  and the feudal barons gathered to consummate Magna Carta is tucked away among trees, with understated majesty in its location and its temple-like construction…”

The Hoover metaphor

A report last week in The Guardian about the UK digital ad market includes this text:

hoover up

Google and Facebook will hoover up the market between them, it says.

“Hoover up?”

This is not new by any means, but it is another instance of how the once-dominant vacuum cleaner brand name Hoover – note the capital ‘H’ – has become a generic descriptor (with a lower-case ‘h’) that’s used in metaphor as a verb like The Guardian’s use, as well as often applied when talking about any brand of vacuum cleaner.

It’s also what can happen to a brand where the owner has not taken the legal steps required in order to protect his rights to the intellectual property in the brand and name.

I tend to write ‘Hoover’ (with that capital ‘H’) whenever I use the name as a metaphor. Just a way of tipping the hat to a name that is in common use today but not as the brand owner foresaw.

And let’s not even talk about xerox, kleenex and many more

Magna Carta: The foundation of modern democracy

Some places you visit give you a palpable feeling of the event or events they mark or commemorate. You can literally breathe in and feel what it was like at the time it happened.

That certainly was my experience on a visit to Runnymede on October 31, from the moment we drove into the car park past The National Trust sign stating that we had arrived at “The birthplace of modern democracy.”

This place, in between Windsor and Staines in southern England, is best known for the role it played as the site by the banks of the River Thames where, on June 15, 1215, it is widely believed that King John affixed his seal to a document known as the Magna Carta, imposed upon him by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their rights.

Our visit to Runnymede was to enable our friends, Shel (my podcasting partner) and Michele Holtz, to see this place on their visit to the UK this past week. I’ve been here before, but the last time was well over 20 years ago.

And so we strolled across the meadow on a beautifully sunny and unseasonably mild October morning to be at the place that marks a milestone in history that has had a direct influence on the fortunes of many countries over the centuries.

Without doubt, this place is one of major significance yet has none of the glitz or shallow commercialism that afflict so many places of historic interest.

The site where King John  and the feudal barons gathered to consummate Magna Carta is tucked away among trees, with understated majesty in its location and its temple-like construction.

The site where King John affixed his seal to Magna Carta

I hadn’t realized, until this visit, that the structure marking the physical place of Magna Carta was built and is maintained by the American Bar Association.

Yet it’s not hard to see why there is such a strong connection as the principles of Magna Carta are foundational to the American constitution and the shared belief between the UK and USA in the individual freedoms and rights of its citizens under the rule of law.

"Symbol of freedom under law"Within the temple-like structure sits the symbol of Magna Carta, a rounded tall stone obelisk with the simple words “To commemorate Magna Carta, symbol of freedom under law.”

This is about symbolism, which makes it easy for me to visualize the events that took place on this site in 1215.

I can imagine King John sitting here with those who spoke for the feudal barons, surrounded probably by entourages, soldiers and horses and other men.

The royal barge would likely have been moored at the riverbank.

What kind of gathering was it, I wonder. Given that John was forced to accede to the demands of the barons and so agree to the Magna Carta – the alternative being a bloody civil war – it was likely not a happy, smiling social gathering.

With the document now bearing the seal of King John it was a done deal, as it were. Yet the sealing in 1215 proved to be a failure in terms of preventing a bloody war as King John subsequently refused to accept and abide by the Magna Carta, the document he had sealed himself.

That led to a civil war known as The First Barons’ War from 1215 to 1217.

But, what took place at Runnymede on that June day in 1215 was an important part of the subsequent protracted historical process that eventually led to the rule of constitutional law in England and beyond.

You can read more in the Wikipedia entry, which has substantial links to other reference material on Wikipedia and elsewhere.

Another significant aspect of Runnymede, that we also visited, is a memorial to an event that occurred in the 20th century, almost 750 years after Magna Carta.

That event was the assassination of US President John F. Kennedy in November 1963, marked by a memorial and the acre of land in which it was placed, given to the United States: that acre of land is American soil.

Kenney memorial stone at Runnymede

These two sites of special interest, marking significant events centuries apart, are a good reminder of the connected values we hold dear in a turbulent world, and what they symbolize to each of us.

  • If you’ve done the maths on the dates I’ve mentioned, you’ll note that next year, 2015, is the 800th anniversary of Magna Carta. I expect we’ll see more mentions of Magna Carta leading up to next June, which I hope will lead to greater discussion about and understanding of its principles.

Know where the legal line lies in what you can and cannot say online

Attorney General's OfficeIf you need further evidence that social media is now very much part of the fabric of contemporary society, it comes in the form of an initiative by the Attorney General’s Office designed “to help prevent social media users from committing a contempt of court.”

Attorney General for England and Wales Dominic Grieve, QC, MP – the British government’s senior legal adviser – announced a change in government policy today about ‘not for publication’ advisories issued to the mainstream media designed to make sure that a fair trial takes place and warn people that comment on a particular case needs to comply with the Contempt of Court Act 1981.

[…] Blogs and social media sites like Twitter and Facebook mean that individuals can now reach thousands of people with a single tweet or post. This is an exciting prospect, but it can pose certain challenges to the criminal justice system.

In days gone by, it was only the mainstream media that had the opportunity to bring information relating to a court case to such a large group of people that it could put a court case at risk. That is no longer the case, and is why I have decided to publish the advisories that I have previously only issued to the media.

In other words, anyone with an internet connection can now read publicly what previously went privately only to a small group.

You’ll be able to read future advisories on the Attorney General’s Office website and via Twitter – just follow @AGO_UK.

In his announcement, the Attorney General added:

[…] I hope that by making this information available to the public at large, we can help stop people from inadvertently breaking the law, and make sure that cases are tried on the evidence, not what people have found online.

It’s a good initiative as raising awareness that leads to better understanding will provide people with the opportunity to act within the law and, thus, avoid themselves being in the dock.

It may surprise you (or not) that quite a number of people seem to believe that you can talk about anything online via social networks such as Twitter and Facebook with impunity. Say what you like, it seems to be: there is little consequence from a quick tweet or status update.

Even in professions like public relations, awareness and understanding of what you can and cannot say publicly on social networks from a legal point of view is pretty low, as evidenced by an informal quiz during the Don’t Risk Litigation: Know Your Social Media Law session at the CIPR’s The Public Relations Show 2013 in London last week.

I participated in that session and took part in the quiz, along with the other 50 or so session attendees, being one of only five people left standing by the end of it, ie, we had the correct answers.

You can listen to that session including the quiz in this CIPR podcast:

(If you don’t see the audio player above, listen on SoundCloud.)

In the past, the Attorney General has issued around five advisories per year although the announcement notes that ten have been issued so far in 2013.

Whatever the number, make sure you’re keeping current with the law and social media, especially if you’re a communicator whose clients (or employer) would expect you to know where the line lies between what you can and cannot say online.

Related posts:

Curating Leveson

levesoncoverI’m experimenting with getting to know Spundge, a content curation and publishing platform (which Craig Silverman talks about at length in the latest FIR Interview podcast I posted yesterday).

Spundge is a lot about finding and filtering relevant content that matches topics you’re interested in. You do this through creating a Spundge Notebook, a sort of virtual filing cabinet, that is where the content found by Spundge’s algorithms and APIs in response to the key words and phrases you’ve defined is presented for you to determine what you do with it.

To help me learn how Spundge’s curation process works, I created a Notebook called Leveson and What’s Next, on mainstream and social media coverage of the Leveson Inquiry and all the hoo-ha and kerfuffle that began the moment the report and recommendations were published on November 29.

If you’re not sure what the Leveson Inquiry is about, its Wikipedia entry is a good place to gain a concise overview:

The Leveson Inquiry is a judicial public inquiry into the culture, practices and ethics of the British press following the News International phone hacking scandal, chaired by Lord Justice Leveson, who was appointed in July 2011. A series of public hearings were held throughout 2011 and 2012. The Inquiry published the Leveson Report in November 2012, which reviewed the general culture and ethics of the British media, and made recommendations for a new, independent, body to replace the existing Press Complaints Commission, which would be recognised by the state through new laws. Part 2 of the inquiry has been deferred until after criminal prosecutions regarding events at the News of the World.

Among all the news and opinion items I’ve seen so far,  two that are very related struck me as highlighting the scale of the task facing everyone in this country, not the least those in positions of power who will make decisions about press regulation on behalf of all of us.

If you’ve been following reports and opinion, you’ll know there’s huge polarization. That’s no better illustrated than looking at online petitions that have been set up, one pro Leveson’s recommendations, others anti.

So far, the pro-Leveson petition set up by the Hacked Off pressure group has gathered over 140,000 signatures.

levesonpetition-pro

(As an aside, I signed Hacked Off’s petition last week when it had less than 14,000 signatures, just 10 percent of what it has attracted in less than a week as I write these words.)

In contrast, anti-Leveson petitions set up on the government’s e-petitions website have managed only tens of signatures let alone hundreds or even thousands, with the most popular one attracting just over one thousand.

levesonpetition-anti

It looks quite clear that the ayes want it. Whether they’ll have it remains to be seen. What’s equally clear is that the clock’s ticking on self-regulation.

I’ll continue to curate content on this in Spundge. And, as Spundge is a collaborative platform, if you’d like to participate in this with me, you’ll be welcome. Good on-the-job learning.

Let me know if you would like to.

Related posts: