Tweet Me Fairly

Hey friends.

I recently found out that the academic article I spent last semester working on is fast-tracked for publication in Fordham’s Intellectual Property Law Journal, which is a huge honor and I am absolutely thrilled.  I’ll post a link once it has been properly edited and whatnot, but for now I wanted to post a quick synopsis and a few additional thoughts.

The article starts by exploring whether individual tweets are covered under copyright law, and therefore protectable once they are fixed (by being posted).  There doesn’t seem to be any reason that they would not be, despite their brevity.  That is, after much research I came to the conclusion that there is no rule of law saying that shortness makes a writing uncopyrightable.  (It seemed clear that a Twitter account, taken as a collection, would definitely be copyrightable as a compilation.)  There are plenty of tweets that would be uncopyrightable for lack of creativity or originality, but there are also plenty of original, creative ones.

If this conclusion is right, then shouldn’t every retweet be a violation of some 106 rights?  My argument was that a retweet is necessarily a fair use, and I went through the factors to make that case.  There is an implicit license in every tweet allowing for the fair use of retweeting, I argued, but how far does this license go?  Does it extend outside of the Twittersphere?  I also came up with a few criteria for answering that question and exploring those kinds of issues, and that’s pretty much the paper.

In addition to all of that, which is content focused, I have been following the PhoneDog case, wherein a company is suing a former employee over control of a Twitter account.  The argument is that the account’s followers are valuable to the company, and thus should remain their property after the employee leaves, even though he changed the name of the account to remove mention of PhoneDog and always used the account for a mix of work and personal tweets.

This got me thinking that a Twitter account has two layers of value – the content layer and the communicative layer (this isn’t in my paper, I’m just thinking out loud).  The content may be valuable on its own, as it is for Steve Martin and others who are publishing compilations of their tweets in book form.  The communication power – the ability to reach audiences – has a value entirely separate from the content.  For example, Kim Kardashian’s tweets probably have little or no content value (in my opinion), but her audience is something that any advertiser would pay through the nose to get.

That may be obvious, really, but for me it’s worth writing down and really thinking through.  It is interesting to watch as free services continue to develop new dimensions of value.  In a sense it is no different from a television station selling its audience to advertisers and deriving its value not from the content of the shows but the reach of its communication.  But in another way its different because of the level playing field for individual and institutional users.

It’s late, and I’m rambling, so off to bed.  I’ll post again soon, hopefully with a link to that article.

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About privacyandpiracy

Fordham Law student, Student Association for Law and Entrepreneurship co-founder, I.P. Law Journal staffer, and Center on Law & Information Policy fellow. Look out for my upcoming article on copyright and fair use in the Twittersphere in Fordham's Intellectual Property Law Journal, and let me know if you need a legal intern. Twitter: https://twitter.com/#!/MrAdamN
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