4 ms·

Without the user's consent (and their share of the royalties)? Regardless of their TOS, how would that stand in a court of law?

MichaelGG 15y ago
The user agreed to assign all rights to the image when uploading the image. Any user suing to the contrary would have to say they didn't really agree. More interesting is when some user uploads a photo they found elsewhere, to which they don't have the copyright.
- ignifero 15y ago
  What if there are consumer protection issues (which clearly there will be here)? The terms are not binding then. Example: The purpose of the app is different now than it was when they signed up
- jonknee 15y ago
  Do you have to agree anything to upload? The official Twitter iOS app lets you upload photos to twitpic and I don't think you need to create an account or anything.
  - pavel_lishin 15y ago
    The agreement might be rolled into the one you agree to when you use the app.
    - smackfu 15y ago
      The agreement should be rolled into the one you agree to when you use the app. If it's not, I guess you can go after the app developer's for damages.
- itswindy 15y ago
  I am not a lawyer but I know that a contract has to be fair and obey other laws to be valid.
  - pavel_lishin 15y ago
    How do you objectively evaluate "fair"? $0.30 cents per text isn't fair.
    - itswindy 15y ago
      You pay a lawyer $600 an hour to figure that out :)
  - cookiecaper 15y ago
    The reality is that there is generally a lot of leeway in "fair" as far as contracts go. You can definitely sign an intentionally adversarial contract and it will usually hold up. I have only known courts to nullify contracts when they specifically violate a given law; for instance, a contract where one side can kill the other side in event of breach would not be valid because it runs afoul of murder/assault laws. However, a contract where an exorbitant fee is levied upon one side in event of breach would generally be held as long as all parties were deemed capable of understanding the contract and endorsing it by their own free will (i.e., not under duress) when it was signed. IANAL, this whole post may be and probably is wrong. Please correct me.
  - hristov 15y ago
    This is a complex issue, but there is no general fairness requirement in contract law. There are some concepts that relate to fairness, such as consideration and unconscionableness, but they are not a fairness requirement, there are fairness requirements in specific narrow cases (usually in agency situations), but it would be wrong to say that in the general case a contract has to be fair to be enforced. None of this is legal advice, just broad overview for the purposes of a purely academic discussion. There are a lot of details that are omitted, so do not rely on anything said here but consult your own attorney instead.
- elehack 15y ago
  IANAL, of course, but I looked at the TOS again and it doesn't assign the rights to TwitPic. It just grants them the (non-exclusive) rights to use & sublicense. So they can use, they can sell, but they can't go after you for doing so via other channels. It's still shady that they can resell your work in commercial channels other than the TwitPic service itself, but it's not like they obtain total control and ownership of your pictures.

MichaelGG 15y ago

The user agreed to assign all rights to the image when uploading the image. Any user suing to the contrary would have to say they didn't really agree. More interesting is when some user uploads a photo they found elsewhere, to which they don't have the copyright.

ignifero 15y ago
What if there are consumer protection issues (which clearly there will be here)? The terms are not binding then. Example: The purpose of the app is different now than it was when they signed up
jonknee 15y ago
Do you have to agree anything to upload? The official Twitter iOS app lets you upload photos to twitpic and I don't think you need to create an account or anything.
- pavel_lishin 15y ago
  The agreement might be rolled into the one you agree to when you use the app.
  - smackfu 15y ago
    The agreement should be rolled into the one you agree to when you use the app. If it's not, I guess you can go after the app developer's for damages.
itswindy 15y ago
I am not a lawyer but I know that a contract has to be fair and obey other laws to be valid.
- pavel_lishin 15y ago
  How do you objectively evaluate "fair"? $0.30 cents per text isn't fair.
  - itswindy 15y ago
    You pay a lawyer $600 an hour to figure that out :)
- cookiecaper 15y ago
  The reality is that there is generally a lot of leeway in "fair" as far as contracts go. You can definitely sign an intentionally adversarial contract and it will usually hold up. I have only known courts to nullify contracts when they specifically violate a given law; for instance, a contract where one side can kill the other side in event of breach would not be valid because it runs afoul of murder/assault laws. However, a contract where an exorbitant fee is levied upon one side in event of breach would generally be held as long as all parties were deemed capable of understanding the contract and endorsing it by their own free will (i.e., not under duress) when it was signed. IANAL, this whole post may be and probably is wrong. Please correct me.
- hristov 15y ago
  This is a complex issue, but there is no general fairness requirement in contract law. There are some concepts that relate to fairness, such as consideration and unconscionableness, but they are not a fairness requirement, there are fairness requirements in specific narrow cases (usually in agency situations), but it would be wrong to say that in the general case a contract has to be fair to be enforced. None of this is legal advice, just broad overview for the purposes of a purely academic discussion. There are a lot of details that are omitted, so do not rely on anything said here but consult your own attorney instead.
elehack 15y ago
IANAL, of course, but I looked at the TOS again and it doesn't assign the rights to TwitPic. It just grants them the (non-exclusive) rights to use & sublicense. So they can use, they can sell, but they can't go after you for doing so via other channels. It's still shady that they can resell your work in commercial channels other than the TwitPic service itself, but it's not like they obtain total control and ownership of your pictures.