Did France Just Make It Effectively Impossible To Use Twitter?

Europe really seems to have it in for the internet these days -- from the GDPR to antitrust actions to the Copyright Directive to the Right to be Forgotten, almost every legal issue popping up in Europe is coming out terribly for innovation and the public's ability to communicate freely with one another. The latest may seem a bit more narrowly focused, but it could be super important. As described on the always wonderful IPKat blog, the Paris Tribunal heard a complaint brought against Twitter by the French Consumers' Association challenging the validity of Twitter's terms of service for a whole long list of reasons.

But just to keep this more focused we'll discuss the part that matters to us: the copyright license. We've discussed the "copyright license" terms (that basically every online platform has somewhere in the terms) a few times in the past -- mainly because every so often someone totally misreads or misunderstands it and a huge, viral, and totally misleading freakout occurs. That's because basically any service that hosts user content has some basic term that effectively says "when you're posting something to our site, you are granting us a perpetual license to host it on this and future iterations of our site, and that extends to other sites where our stuff might appear." That's the plain language version of it, but some people act as if it's an outrage that a platform is claiming that it can have such a broad license to include the content on future sites or with partners. Many -- incorrectly -- claim that this means that the sites are planning to "sell" your content to third parties. That's not the case. The clause really just allows for things like "embedding" where the same content will appear on other sites, and that alone shouldn't be seen as an infringement. So you're licensing the content for such uses.

But, some people still find this offensive... and apparently that includes the Paris Tribunal. Twitter's terms attempt to explain this situation pretty clearly:

You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

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). This license authorizes us to make your Content available to the rest of the world and to let others do the same.

The French Consumers Union (Union Federale des Consummateurs -- or UFC) finds this to be somehow misleading, saying that the whole beginning telling users they retain their rights is misleading, given the rest of the explanation saying that you're granting a (non-exclusive) right for Twitter to then make use of it. This is a very confused reading. Again, the necessity of the license is so that you can post something to Twitter without Twitter then having to worry you're going to sue them over the thing that you yourself posted. UFC also complained that the license was somehow "too broad."

And the Tribunal bought these arguments:

"The aforementioned clause which grants to the service provider the right to use, for free, any content generated by the user, including content which may be protected by authors’ rights, without specifying in enough detail the content concerned, the nature of the rights transferred and the nature of the commercial uses agreed upon, infringes the provisions of Articles L 131-1, L 131-2 and L 131-3 of the Intellectual Property Code"

Specifically, the tribunal is basically saying that every copyright license has to be written out specifically around that content, and specify what the content is and what it will be used for:

the IPC, Article L 1341-1 prohibits the assignment or licensing of future works: “Total transfer of future works shall be null and void”. The IPC also requires that transfers of rights (assignments or licences) be recorded in writing and be very specific as to their content. It is a legal requirement that each right being ‘transferred’ (i.e. assigned or licensed) be separately mentioned in the contract and that the scope, purpose, place and duration of the exploitation for each of these rights be clearly defined in the agreement for the provision to be valid (see, IPC Article L 131-3). In other words, vague blanket assignments of present or future works are null and void in France.

A big part of the problem here -- as highlighted in the IPKat article -- is that France's law apparently doesn't distinguish between assignments of copyrights and licenses. That's... bonkers. The requirements above make a lot more sense when talking about assignments (transferring the actual copyright to someone). But they make zero sense when it comes to mere licensing (basically permission to make use of the work). But, if France is saying that every license must be treated like a full copyright transfer requiring specific contracts, well, there goes all social media and user generated content in France.

To put it mildly, this is crazy. It's taking permission culture to new insane levels. It certainly appears that under this ruling, in order to tweet in France, you need to sign a new agreement for each tweet with Twitter before you can post, in which you describe the content of the tweet itself and Twitter promises only very narrow uses. That's... insane. How can you possibly operate any site that allows for any user-generated input under such a standard?

This is what happens when you have judicial bodies who clearly don't understand how the internet works. Requiring a new specified agreement to license each individual tweet is fundamentally at odds with how the internet works as a communications mechanism. Conceivably, this could serve to show the ridiculousness of copyright itself -- that it forces such preposterous outcomes -- but remember that no other country seems to interpret terms of service this way. Anyway, it's unclear what Twitter is going to do about this, but it certainly seems like it may be risky to continue even operating in France with such a standard in play.