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Disney claims anyone using a Twitter hashtag is agreeing to their terms of use (twitter.com/disneyplus)
888 points by slg on April 27, 2020 | hide | past | favorite | 352 comments

At a rummage sale a few years ago, I bought a book published by Disney in the 1960s or 1970s which had instructions on how to make Mickey Mouse puppets. It also said to "have fun" making them. Selling things for a profit is a lot of fun.

As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.

Well-developed (highly-litigated) areas of law don't work this way.

A phrase in children's book is unlikely to be considered sufficient evidence that Disney has conveyed an unlimited license to sell Mickey puppets.

At best, the language might protect an unsophisticated infringer from having to pay statutory damages or Disney's legal fees. For example, if a naive person (non-lawyer, non-business person) sold a few of the infringing puppets on Etsy, Disney would drop it (or a court would force Disney to drop the case, if needed) as long as the infringer promises to stop infringing.

In contrast, a sophisticated infringer would be hung out to dry. Because sophisticated infringers cannot credibly suggest that they believe Disney has conveyed an unlimited right to make and sell Mickey puppets based on a phrase included in a children's book.

Note, the words of a license or contract (including signatures if present) are taken as providing some amount of evidence of a license or contract. Contract docs memorialize an agreement between parties to enter into a contract. Formality requirements depend on the stakes, tradition, sophistication of the parties, etc. Most of this can vary widely depending on the industry or type of contract. Plus, in many cases, other statutes or regulations may come into play depending on the subject matter, type of agreement, duration of agreement, jurisdiction, and so on.

Here, since conventional language or formalities that Disney normally uses when licensing its IP is absent, a court is likely to find no license grant or contract.

Couldn't you show that they're willing to enter into a contract by hash tag, therefor they're pretty flexible on how they enter contracts. Or is it only the unconscionable ones?

It accepts the Mouse's contractual conditions or it gets the copyright extensions again.

What about parody? South park made fun of Mickey mouse a few times and they didn't change his name. Say I make a cartoon crackhead mickey where he's on the pipe and bangs hookers. Then I want to release a toy of my parody. Im joking but I don't think anyone has ever released toys of parody. Parody is under fair us,would that also extend to merchandise stemming from the parody?

It can do, but the test is higher, so you're disproportionately more likely to find yourself on the wrong end of a losing lawsuit.

Fair use is a balance of a number of conditions (in the US). One of them is how commercial the use is, and spin off merchandise is pretty commercial.

How do we determine who's sophisticated? Sure, it might be one of those "I know it when I see it" things, but is there a legal process to determine that someone is enough of a moron that the law can cut them some slack?

Anything with a Disney logo on has Walt’s signature. I bet that book has it on some place.

Again, such a signature is going to provide no support for a claim that Disney is providing a license to sell homemade Mickey puppets. Especially if the signature is automatically included on most or all of Disney products.

In contract law, signatures on a document memorializing a contract provide (often fairly strong) evidence that the signing parties have agreed to the contract.

This reminds me of a book called "numerical recipes in C", full of algorithms that were very useful except you couldn't really use them because the authors protected their use with a very restrictive license.

I have been to briefings about source code licensing that specifically call that book out as "do not open".

You could use the algorithms, just not their implementation of the algorithms. If you rewrote it from scratch, following their text (not their source code), you were fully allowed to use it.

I'm curious how this works in the case of reinvention. Some algorithms are so simple that there is basically one canonical way of writing it. I'm assuming copyright doesn't cover the independent implementation in such cases?

Reinvention is ok in term of copyright. Patent would prohibit it.

What would happen if I patented "left pad" in a bunch of languages?

Behold the three pillars of IP protection.

Copyright protects the What (tangible creative works, such as, printed publications, movies, sound recordings, source code, and so on)

Trademark protects the Who (who made this service or product)

Patent protects the How (how does this widget do what is does)

it would be an invalid patent (or at least should be), because 1. There is prior art 2. it is obvious to a domain expert But given the US patent office's track record, I wouldn't be too surprised if you were able to get a patent. Just don't expect it to hold up in court.

But then, if you're patent trolling - does it even need to hold up in court?

IF cost_of_settlement < cost_of_court_action THEN pay_up(); /* ? */

Yep. Until you threaten someone willing to stand up to it, even if it is expensive.

Code cannot be patented - copyright covers that.

Patents on software are not that simple - it needs to describe an entire physical system that gives value to a user, not just an abstract function that does computation.

Your patent would be rejected presumably

The patent would get thrown out on review

Not if you avoid the common names and invent a new name for it. Nowadays they are just doing some searches and patent granted.

Hypothetically, until we get to Google v. Oracle, and now really nobody has any idea what the hell is going on.

I started out a project by copying RK4 verbatim. Over several months it morphed and took on a life of its own as I integrated it into other parts of the program and smoothed out the inefficiencies. At what point does it stop being a derivative work I wonder?

Never. Derivation is not a property which can be "lost". Deriving more things through the process of derivation at not point stops the derivation connection.

You should not include code at any point if you do not have the proper license for it. The copyright pollution spreads and any attempt to "clean room it" would be more expensive than re-writing from scratch.

Did you know that you can't use copyright to protect an algorithm?

But you can copyright the most efficient implementations.

You can only copyright the text of the source code, as if it was literature. Write your own source code to implement the same algorithm using the same efficient techniques, and you're fine (as long as it isn't patented.)

so... rename the variables?

It depends on the jurisdiction. e.g. Such a thing would not be copyrightable under Australian law. That could be a way around it.

As mentioned above, some algorithms are so simple that there's only one canonical way to write them. (Take 'looping through an array' for example - in each language there's generally one canonical way to do it.) You could argue that the text of that canonical way is copyrightable.

(It's similar to the early days of heat engines, where a guy called James Pickard managed to patent the crank, preventing other engine manufacturers from using cranks and forcing them to use a sun-and-planet gear arrangement instead: https://en.wikipedia.org/wiki/Sun_and_planet_gear )

They protected their code. If I recall correctly you could license it separately.

Nothing stopped you from implementing them yourself.

The implementations are short and simple for easy reading, so they are not the most efficient or practical. Early versions of the code had bugs, so you should not use the old versions of the book.

The key is to do what Steven Muchnick did for his Compiler textbook: Write the algorithms in a made up programming language so no one can run them and find the bugs.

I'm not being facetious, it's called ICAN, and as far as I can tell no compiler exists for it. Other than that it's a great book though, although maybe showing its age in that there isn't much discussion of OOO and ILP etc. And SSA.

Donald Knuth did it first. First with MIX, then with MMIX. http://mmix.cs.hm.edu/

It's a fun reference, but it's very different. It's a CPU rather than a language, he implemented it, and it was designed to be easy to implement.

As I understand it, Lisp was originally expected to be a teaching or proof language with no implementation, then it got implemented.


No, Lisp was developed from 1958 onwards as a list processing language for the IBM 704.


Page 7:

> The implementation of LISP began in Fall 1958. The original idea was to produce a compiler, but this was considered a major undertaking, and we needed some experimenting in order to get good conventions for subroutine linking, stack handling and erasure. Therefore, we started by hand-compiling various functions into assembly language and writing subroutines to provide a LISP ”environment”.

Amusingly, I had the old "Numerical Recipes" before there were versions for the different languages. Since I was writing in BASIC and then Pascal, I had no hope but to re-write the code myself anyway, and I couldn't afford to update when the new editions came out.

Not too long ago, a colleague asked me if I had a good code for linear regression, and I sent him a copy of the page from my undergraduate data analysis textbook, which had it in FORTRAN IV.

On the other hand I haven't seen red black tree implementation that isn't based on Cormen (in most cases quoted).

I have that book sitting on my bookshelf and would never dream of copying anything verbatim from it. Writing the code out yourself can significantly improve readability of the code.

As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.

That's not even remotely true. The plain language of the book says to have fun making them. It's irrelevant it you have fun selling them because that's an entirely separate act.

Arguing that you have a perpetual and transferable license wouldn't just get you laughed out of court; you'd likely owe Disney their legal fees for making a bad faith legal argument.

I'm not sure that would pass the "meeting of minds" test of contract law...

That book isn't an example of a contract, unlike the crazy Disney tweet.

The book terms form a license. Backed by the purchase price of the book. Disney's likely argument is that only original purchasers of the book are covered by the license, that non-transferability was implied.

Luckily US still has a first sale doctrine. Perhaps after you pass the book on you have to stop making puppets though.

So this license granted the purchaser permission to use Disney IP in exchange for the purchase price of the book...how is that different from a contract?

The distinction between a contract and a license is a lot smaller than most people in software seem to think it is [1].

[1] https://www.technollama.co.uk/a-licence-or-a-contract

A license is different from a contract because there is a separate body of law for licenses and another for contracts, with different requirements.

A contract can involve a license, and a license can involve a contract, explicitly. But they are different things. You need a lawyer to explain precisely how they are different, and how they interact. (Many judges and many lawyers are not very clear on license law.)

But one important difference is that there is no need for mutual agreement or exchange of value, in license law. If you don't agree, you don't have the license. You start out bound by its restrictions, under the Law of the Land, and they are only relaxed by its owner choosing to relax them.

Licenses are a type of contract, (like a square is a type of quadrilateral).

Contract law applies to all licenses, but IP licensing law does not apply to all contracts.

Not all licenses are contracts. Some are deeds instead.

("Contracts" and "deeds" are different – contracts require consideration, deeds don't – a deed can be completely one-sided; deeds have far stricter formality requirements than contracts.)

There may also be cases of licenses which are neither contracts nor deeds – such as the concept of a "license by estoppel".

What he said.

The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).

A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset nor a subset of contracts. There is, however, a bunch of cracked case law around licenses created by jurists confused about the topic.

I am no lawyer.

> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).

Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.

> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.

That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.

The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:

1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,

2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,

3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and

4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.

Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.

What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.

I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".

I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.

I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.

And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.

This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).

> I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".

Neither of those state that it is not a contract.

> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.

Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".

> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent

A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.

That’s interesting, though... does that mean that in your understanding of the scenario (IANAL, you might or may not be) the original buyer might have a shot at making that argument?

Yeah, so my thought when I bought it was to offer to sell it back to Disney for $25k or something. I could most likely get a pro-bono defense while Disney would pay a lot more than that in a lawsuit which I would most likely win. Most likely. I still haven't acted on it yet.

I could fly to Moscow and defeat the Russia Mafia in unarmed combat. Or I could blackmail Disney in a lawsuit.

The Russian Mafia think my chances better beating them than Disney.

You won’t win. The marginal cost to Disney of suing you is close enough to $0 that it’s not worth mentioning. Further the likelihood of a lawyer representing you pro bono in an unwinnable nuisance suit is much lower than you imagine.

Disney is a money printing machine. All they have to do is make another "Marvelous" movie or a "Space Fights" movie (yes that's XKCD) and that will add some more billions to their coffers. They got enough money to be dragging you to courts for another century. No pro-bono lasts that long.

Please do ! This would make an interesting case to study and you would certainly become famous. I would not be as confident as you that you'd be likely to win though ...

More like "changing of the minds"

This wouldn't fall under contract law - it's more like an implicit license grant.

Selling and making are two different things

Not if making money is fun for you.

What if you can only have fun making the puppets while simultaneously murdering someone? Following your logic, Disney endorses murder. Complete nonsense.

If there was money in it, Disney would absolutely endorse murder.

@DangitBobby Making money off of someone else's IP is illegal though.

Nope, Disney makes money from other people’s IP all the time.

Perhaps you meant something else.

Not if that someone else permits you to do so, which is exactly what is being claimed here.

That's silly. Making money is not illegal. A contract simply cannot permit something that is illegal, such as murder.

Frogpelt kinda touched this. You can take some creative licenses for example. Feel free to use "that photo" or "that sound" but not for profit. BBC let free their sound library, and you can use any clip you want, except not for profit.

Right, but that's explicit in the license. On the other hand, it's broadly accepted that you can sell stuff that includes BSD-licensed works, despite the BSD license not explicitly saying you can.

Making puppets != making money

You could have a written consent from Walt. All that actually matters is your appetite to deal with an exhausting legal battle.

you do. what you don't have is a license to attach the words "Mickey Mouse" to your product.

Is Mucky Moose already copyrighted? I'm not very good making puppets.

That sounds like an awesome relic, got any pics or sharing the title of the book if you don't mind? Would love to see what the puppets look like in all their hand-crafted glory..

The good news is that Mickey Mouse is about to be in the in the public domain. You can do whatever you want at that point.

But only if he's not wearing gloves!

By that reasoning you could use said puppets to press play on bootleg Disney movies shown to theater audiences and claim that was fun, right?

Update from Disney:

> The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus . These replies may appear in something special on May the 4th!


... as if that's really any better.


From their terms of use: "Disney DTC LLC and/or its affiliates and subsidiaries (collectively, “Disney” “we” or “us”) are pleased to provide to you certain websites, software, applications, content, products, and services (“Disney Products” and “Products”), which may be branded Disney, ABC, ESPN, Marvel, Pixar, Lucasfilm, FX, Fox Searchlight, 20th Century Fox, National Geographic, or another brand owned or licensed by Disney."

What Disney is arguing is that their Twitter account is magically a "Disney Service", and that by tweeting at them, and using a specific hashtag, you are magically using their service, which would then bind you to their terms of service.

Fuck right off. That's not how this works.

I understand what Disney wants, it wants to use other people's tweets in their own promotion materials. That is fine, provided they ask permission from the authors of said tweets. But since they're lazy fucks, they're trying to pre-emptively argue that if you use that hashtag, they already asked, and you already said ok, so they don't have to go through the hard, hard, work of actually asking people and documenting their consent.

To expand on why this is bullshit: Disney's terms of use state among other things that: "[...] you may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive [...]"

So Disney is claiming that if I reply to their tweet and use the hashtag, and if my reply contains content that is ok according to Twitter's terms of use, but not ok according to Disney's terms of use, I am magically violating Disney's terms of use. Despite me not using an actual Disney service, despite them having zero control over my tweets, and despite me not accepting their terms of use in the first place.

Hell no.

I'm not saying you all should reply to that tweet with your best Chewbacca furry porn. But you totally should.

Did Twitter put them back to their place or they don't want to lose the ad revenue and let the muggles fight them off?

Nothing's going to come from this, and Twitter doesn't need to care, because the conflict is about Disney using other people's tweets in their own marketing material. Twitter's rights aren't being infringed if Disney does that, because Twitter doesn't own people's tweets.

The only way to challenge this is for you to tweet something to Disney that they then use in their marketing material. That allows you to send them a cease and desist, because you didn't give them permission to use your tweet in that way. At that point Disney is just going to say "ok", shitlist you, and stop using your tweet, because that's cheaper than any alternative.

This is just overreaching bullshit CYA legalese that's never going to get challenged in court.

So basically Disney, like an entitled rich jerk, gets to fondle the help because they're wealthy, and if the help complains they get an apology and dismissed.

This is what unfettered and auto-extending copyright enables.

> Twitter doesn't own people's tweets

How do you figure?

By reading the Twitter terms of service.

"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)."

(Twitter certainly isn't unique here, this is the gold standard for user-submitted content. Users always own their content, but grant the service an unlimited royalty-free transferable license to copy, process, display and "perform" the content.)

Jack Dorsey was on the Disney Board until 2018, so probably not.

I just noticed Google does the same:

>Will Google use my social media posts to promote Code Jam?

>If you share or post content on any Coding Competitions social media page(s) or tag a post with a Contest hashtag (e.g. #CodeJam) on your social media account, then Google may feature your Social Media Content in marketing and promotional materials for any Coding Competitions Contest. Learn more in the Coding Competitions Terms.

Guess it is more binding when they write that on their webpage than on their social media

I love the precedent that Disney is setting here. Will be a little harder for them to argue against my Tweet next month:

"Walt Disney World was awesome! Thanks to all the hard workers who made the day special.

By replying to this Tweet, Disney Corp. hereby agrees to abide by the copyright laws in place as of the release dates of its motion pictures, instead of the longer dates obtained through perversion of the legal system by Disney and its lobbyists."

In all seriousness, I'm sure Disney never thinks for a moment that the law would ever be applied fairly to them or that this tweet could come back to bite them.

This reminds me of the Russian gentleman who received an offer for a new credit card but didn’t like the fine print. So he changed it. And mailed the contract back to the bank who... didn’t read the fine print and accepted the terms.

When he sued the bank to enforce his contract for a no-fee account with an unlimited line of credit at 0% interest he won. Fortunately for the bank he was prudent in his spending despite his access to unlimited funds so he hadn’t racked up much of a bill.

Story here: https://www.independent.co.uk/news/world/europe/read-the-sma...

Except he didn't win. I believe he lost in appeal as it was deemed he acted in "bad faith".

It seems the case was eventually settled[1] for an undisclosed sum.


I mean, why wouldn't you be able to form a contract through tweets? You can form a contract through any medium you want, especially just to give permission to Disney to use your tweet.

I don't think Disney is setting any precedent or anything else weird by saying "send us messages you want us to publish, by the way here are the specific terms we want to use" on Twitter, they've been doing that for a long time before twitter even existed. Think about America's Funniest Home Videos, they did exactly this for decades but over TV.

Your tweet fails to give Disney any "consideration" so it's not going to be a valid contract and not because it's in a tweet. Offer them clearer terms and a dollar and then maybe you'd have a point. Right now they offer you a chance to see your tweet in some marketing materials, better than nothing right?

Lastly, this is incredibly specifically scoped. Does anyone tweeting "Love the new movie #MayTheFourth @Disney" really expect Disney not to want to use it? They are going to have someone review the tweets before they use them. How could this possibly come back to bite Disney?

Disney probably does have implicit permission from anybody who tags them and uses that hashtag to use their quotes for a social media project, since Twitter is generally considered to be a forum for public discourse. This might also be enshrined in Twitter's ToS. That's not the problem.

The problem is that they claim that anybody who tweets at them and uses their hashtag is entering into a contract agreement with the Walt Disney Corporation, which can be found at https://disneytermsofuse.com/ . This is ridiculous because nobody needs Disney's permission to use Twitter. If somebody were to use Twitter to express to Disney a desire to enter into a contract that might be valid, but Disney can't unilaterally declare that anybody who sends a communication to them over a given medium is unconditionally agreeing to be bound by their terms of use.

> This might also be enshrined in Twitter's ToS.

It isn't.

Twitter's ToS gives Twitter a license. But not third parties on Twitter.

Disney could buy a license from Twitter who would be able to use the rights they're granted by their ToS, but they would need another contractual agreement to do so.

Unilateral contracts are a thing, when one party makes an offer that is only accepted by performance. As the offeror, Disney can invite acceptance of their contract however they want, including via replying to their tweet with a special hashtag.

They made the requirements pretty clear and stringent enough that I very much doubt anyone is at risk of accidentally entering into that contract, but if that does happen, then the contract would be null. I just don't see that happening though.

It has happened. People replying to the tweet, with the hashtag, but trying to discuss the intent with Disney are clearly not attempting to enter into the contract.

The problem is Disney co-opting two regular parts of Twitter's service, and then claiming that represents a Disney service. It isn't, and can clearly be used for purposes beyond establishing a contract.

Disney has someone reading these tweets and selecting them for marketing materials. That is the service, not Twitter itself.

You can set up a phone line or P.O box with the same terms of service agreement. Twitter is not sacred. You can call that "co-opting" those services I suppose, but I don't see why that's a bad thing. Services exist to be used.

Disney is going to use some common sense when reviewing these tweets and filter out the trolls and people disputing the terms. They are not out here trying to trap helpless children into a contract, just make some marketing materials. Again, this is not the first time this has been done and is not controversial. Maybe I underestimated the number of troll tweets, but I'm sure Disney will figure it out just fine.

>They are not out here trying to trap helpless children into a contract

Yes they are. Did you not read their tweet? They literally called it a contract and said that they believe anybody who replies to them with that hashtag is agreeing to its terms. Their choice not to exercise the rights they are granted by that contract doesn't mean that there isn't a contract.

The only thing that does mean there isn't a contract is that their logic is bullshit and they can't unilaterally decide that somebody else has entered into a contract with them.

What if you send back modified terms?

“@Disney #MayThe4th This tweet enters into Disney’s offered contract, except that Disney agrees to pay $100,000 for the license to optionally publish this Tweet and to include it in Tweet analysis corpuses. If Disney doesn’t explicitly object within 48 hours or collects this tweet as part of a database, they accept this modification.”

IANAL, genuinely curious.

There's the famous case of a guy doing that to a bank in Russia and winning, so it's not unheard of.

In this case Disney offered a contract that you enter into via tweeting a reply. If you send back modified terms then Disney has the chance to review the new contract and reject or accept it. If a human saw your tweet and still included it in whatever marketing materials they are creating then you might have a good case.

Just as Disney would need to argue that you knew you were being bound by their ToS when you tweeted them, you need to show they accepted your terms. The part of your example about a time limit wouldn't fly for that reason. Both sides also have to think the contract is reasonable (not a joke). If you put a bajillion dollars as the price, there's no contract. I'm not sure if $100k for a tweet is believable.

why not go nuclear?

"Walt Disney World was awesome! Thanks to all the hard workers who made that day special.

By replying or retweeting this Tweet, Walt Disney Corp. hereby agrees in perpetuity to sell to the owner of this twitter account for $1, per motion picture, an unlimited, license for any purpose."

Why not go pandemic?

> Walt Disney World was awesome! Thanks to all the hard workers who made that day special.

> By retweeting or mentioning this tweet, Disney agrees to grant every natural person that likes this tweet unlimited redistribution rights and has to pay each liking twitter account 1000 EUR per month per unique click.

well you do want a small chance the judge will side with you.

In practical terms both versions likely have zero chance of success. Sadly.

Although scientifically speaking, the rounding off error of your original formulation is bigger :)

Better trying to find another E-Corp willing to do the same and stack both against each other.

Even if copyright law wasn't perpetually extended for Disney, it would likely change little. People want original Disney movies, theme park experiences, etc. That's part of "the magic". Plus, Disney has many works that aren't anywhere near entering the public domain. They seem to have positioned themself for the situation where the extensions do not continue.

Ironically one of the things the 1886 convention was intended to counter was publishers printing works without permission. It was about AUTHOR'S rights. In subsequent versions this has been transformed in something very different.

Copyright was not always as it is today.

Copyright was first and foremost created to reinforce censorship, which tends to collapse when the means of (re-)producing "creative works" become cheaply available to the masses. It is older then liberalism: the right to copy a work was a right of the publishers given to them by the monarch, with the intent to limit who can publish what and under the threat of violence when disobeyed.

Transforming this "copy-right" from a right given by the monarch to a right given by the authors was a key event on the way of Liberalism replacing Monarchism and changing all common law to be based on human rights. One should notice that this "exclusive right to copy" restricts the right to use such "intellectual property", which is why Article 17 of the EU Copyright Directive must be opposed unless, at least, fair use is granted.

Early modern copyright was even more restrictive: its intent was to restructure what became an uncontrollable market: having authors license their works exclusively to some large publishers starved the small presses and ensured a controllable elite that would not dare to print seditious materials. Owning an unregistered printing press was illegal under the threat of violence. It is naive to belief the primary intent was to prevent harm to the income of the authors. Until today the right to copy is mostly a right of the publishers. Authors sign it away and consumers do not get it.

Certainly with some companies with Bot's - this would get very interesting indeed. Dear @{company} by replying to this tweet you agree.........

Copyright is fairly applied to Disney. There were many beneficiaries to its extension, large and small. In any case, it is a matter of law, just like earlier, shorter copyright protections were.

It's totally legitimate to favor shorter copyright, but essentially any duration is an arbitrary one. It strikes me as odd that you would be interested in applying the law fairly while also referring to the law as a perversion.

> There were many beneficiaries to its extension, large and small.

The public did not benefit in any way from its extension. Quite the opposite: every time the duration of copyright terms is extended, the public is robbed of its rights so that corporations which have already made billions off of their copyrighted works can make even more money. When was the last time some copyrighted work entered the public domain? Probably the early 20th century. When people think public domain, what comes to mind is renaissance art and classical music. The truth is everything created in the 80s and before should already be in the public domain and that's very generous, more than enough time for companies to get rich off of their creations.

The original social contract behind copyright was "we'll pretend your intellectual work is scarce for some time so you can profit and then it will enter the public domain". Works aren't entering the public domain because every time Mickey Mouse is about to become public property Disney spends millions lobbying the government in order to extend the copyright duration. Copyright is effectively infinite despite what the law says. So why should the public recognize copyright as legitimate to begin with?

This! Disney has morphed copywrite without any input from the public. What sort of contract is valid if only one party changes the terms and the other never agreed to it?

I'm not a fan of copyright law, so don't take this limited factual response as an attempt at a general refutation of your points.

>When was the last time some copyrighted work entered the public domain?

January 1st, 2020: https://en.wikipedia.org/wiki/2020_in_public_domain

So, things made about 100 years ago are finally making it into the public domain..

I don't know.. I mean yeah, but something strikes me as really wrong about that.

Some would argue that the undefined duration does not match “limited times” and that the copyright is no longer “promoting useful arts”. While some of these questions have been answered in Disney’s favour in recent times, it is clear that the “matter of law” is anything but clear.

This was adjudicated up to the Supreme Court: https://www.oyez.org/cases/2002/01-618

tl;dr: 7-2 as long as there is some type of time limitation, Congress is free to extend copyright terms.

Eldred vs Ashcroft held that the CTEA (Sony Bono act) was constitutional.

This is a good point worth bringing up, since the GP seems to imply it isn't with reference to the wording of the constitution's Copyright Clause.

However, it doesn't answer the moral question of whether congress should have passed that law, or whether congress should pass laws to change copyright term lengths to be shorter. That's not the role of the court.

Cool, so why not set the limit to the heat-death of the universe and be done with it?

> Cool, so why not set the limit to the heat-death of the universe and be done with it?

Presumably SCOTUS would say that an effectively-infinite timeline is not "limited" within the Constitutional definition of the word. Eldred v. Ashcroft basically tried to argue that continual decades-long extensions amounted to this, but the Court was not convinced.

The supreme court agreeing on something is a solid piece of evidence that something is correct, but it's very far from ironclad. Especially when it's not unanimous.

Somehow, to me, it's even slimier when it's a subset of posts is a targeted hijacking of an injoke made by fans for fans that predates their ownership of the property. It's not blanket maliciousness against all users, it's targeted maliciousness to steal from them.

What is Disney stealing in your mind? the tweets or the hashtag?

They are taking ownership of the idea of May the 4th. If this seems ridiculous, then don’t look at Disney’s business model. They dish out billions to buy the rights to ideas as flimsy as this one.

@DisneyPlus: I agree you may reuse this tweet and any tweets my affiliates send to #MayThe4th, subject to our standard licensing fees. A list of the fees and affiliates is freely available, subject to a thirty day processing delay.

I took this as more like when you write a letter to a magazine and they say to write "Ok to print" so they can use it later. If you send them a message for use in MayThe4th celebrations, they can then use it in promotions.

Except that tweets aren't sent to Disney. They're sent to all Twitter users.

For some reason I don't see a reply link on lewisgodowski's comment.

> Couldn't replying to their tweet be considered sending it to Disney?

Disney apparently does "consider" that to be sending it to Disney. Since Twitter doesn't belong to Disney, I don't see how that could have any legal relevance. Twitter has its own terms of service.

(I am not a lawyer.)

If you and I tweet back and forth agreeing that I'll sell you a sandwich for $5, that's a contract. No court is going to hear an argument that I was talking to Twitter and then Twitter was talking to you so it doesn't count. Anyone tweeting @Disney is clearly "sending it to Disney".

Also I think there's a time delay on seeing the reply link on replies to your own comments.

Even ignoring the rest of your logic - replies are different from mentions and can be inferred only by context of the tweet and not simply the presence of @disney in the tweet.

In your example, I would be Tweeting you explicitly saying “I’ll give you $5.” Maybe that’s a binding contract.

That’s not what Disney is doing. What Disney is doing would be like if I said “Anyone who Tweets at me owes me $5.” That’s obviously not a binding contract.

Disney is saying "in exchange for a chance to spread your message in our marketing materials, you agree to our follow our ToS".

You're really twisting words here. No that is not what is happening. I never agreed to any exchange. I should be able to tweet at Disney with that hashtag and not agree to their ToS. Nothing about a hashtag implies consent. It is not their service to set terms for. I already agreed to the twitter ToS. I shouldn't have to be worried about accidentally agreeing to terms just because I used the right combination of hashtag and twitter user.

> The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus

Couldn't replying to their tweet be considered sending it to Disney?

> > The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus

> Couldn't replying to their tweet be considered sending it to Disney?

Is replying to a column in an opinion piece sending it to the author or the newspaper?

Tweeting is (generally speaking) a public performance, not something which is "sent" to someone. The same applies to most open platforms, including Hacker News comments like this one.

Except the phrase "Ok to print" is unambiguous consent. And should it occur somewhere where it is ambiguous what is being meant then it doesn't count as consent.

Sending a tweet to Disney with a generic hashtag can't be considered consent in any way, shape or form. What guarantee does DisneyPlus have that everyone sending them a tweet with hashtag #MayThe4th is intending that to count as consent?

Yeah, that's what it reads like for sure.

Shouldn't they be negotiating with Twitter for that though?

Now the interesting question is whether they were simply lazy in the language and this was their initial intent or if the 5 hours of the original tweet being ratioed motivated a change.

The new clarification is absolutely better to not claim ownership over the entire hashtag, but it is questionable to claim in one tweet that any replies made to a different tweet are an agreement to a private TOS.

I know there is a rally around this happening now, but I think it's pretty obvious that Disney was simply saying if you reply to their message with that hashtag then they want to be able to re-post your message as part of their marketing.

Of course the way they said that could have been worked on.

Yes, that was their intent.

But the over-lawyer-ification and impracticality of opting out of corporate terms of service is an widespread problem. This is an interesting expansion of that problem, so it deserves highlighting.

Disney being excessive in claims to IPR. Who else is shocked. /s

Yes, obviously, but why would anyone need to consent to disney's own private terms of use on a different website for this? That's the shady part here. There could be anything in that TOS, and this tweet will trick a lot of people into agreeing with something they didn't read and shouldn't have to.

If Disney were embedding tweets, it would likely already fall under twitters license for redistribution of content (aka hosting.)

However, if Disney plans to copy and paste the tweets into another graphic, they felt they wouldn't have the appropriate license to reuse text copywritten by others, without this odd TOS.

The one thing about this that plays into Disney's favor, is the attention probably reduces someones honest ability to say "I never saw the agreement tweet."

It would have been fine with me if they didn't include the part about agreeing to their own private terms of use on a completely different website. What a strange way to trick people.

Other than that it just seems like a way to ask people to allow them to use replies in a video or something.

Edit: But wait, this is actually STILL ambiguous! On twitter, a 'mention' happens automatically when you reply to a tweet, because it includes the name of the account replied to, so it's not clear whether you actually have to tag @disneyplus or not.

Well, I believe, unfortunately, from a legal perspective they have to if they plan to use the reply for a marketing thing...

They could contact the authors and ask them for permission explicitly instead of saying in a random tweet somewhere that a hashtag opts you in to agree to anything.

Fair point!

I think the value of hiring more experienced folks to run social media (i.e. not an intern, someone with any amount of experience) is that they can actually point out how ridiculous this will come off, and argue against this type of tweet. It really doesn't take that much corporate self awareness to see how bad it looks to try to force TOS on free speech on a public forum.

> It really doesn't take that much corporate self awareness

I think you underestimate how well anyone in management actually understands this. One job had me constantly pushing back on three or more paragraphs of legal text in the damndest of places. In one case, the legal text was larger than the form itself to say "we need your email to contact you with changes related to your account".

Every time I contacted our company lawyer directly for clarification, he was always fine with the short summaries I wrote.

I was the only person in the entire process that stopped to ask if any of this was really necessary. I guess that's why I was the developer handling all most of our legal compliance. Everyone else either didn't care or had given up.

In many organizations, legal boilerplate has nothing to do with what's reasonable in the law or even what a lawyer thinks is necessary.

Much text in business has become the ever growing wrapper for:

"As the writer, I get as much monetary value as I can or at least make you believe as such and you give up as much monetary value as possible, or at least as much as I can scare or deter you from seeking. I also have no responsibilities and all rights, while you have all responsibilities and no rights."

It's simply expanded out a bit more and often gives explicit examples. It's completely unmanageable for any common citizen to process and understand what you almost have to agree to on daily basis to function in our ever more privatized world.

The amount of garbage I see on a daily basis wrapped with passive aggressive legal threats around every corner is mind numbing. I even still get emails from people who add footers that they own the information and if you receive it wrongfully, you're "required" to delete it.

We essentially have a bunch of children running around running society through businesses driven by greed who never fully socially developed into functioning reasonable and responsible adults.

You are right, the amount of garbage legal stuff has expanded - but mostly as a result of people doing shit they're not supposed to do. Let's take the email footer... and an email directed to the wrong person: in ye olde times, the recipient would go "not my crap, delete it" and that's it - but now, there is a real risk the recipient uses the information and publishes it, leading to monetary damage or penalties (e.g. if it was information that must not be disclosed prior to a certain date).

The company can now sue the recipient or at least threaten him for disclosing stuff. Yes: the error is on the sender side, but in ye olde times the unspoken agreement was that you'd delete mails not addressed to you. Times have changed and so the legal boilerplate had to adapt.

A bit more common sense across the world, especially when it comes to the trend of resolving conflicts via courts instead of talking to one another and shaking hands, and there would be a lot less boilerplate and mind-bogglingly dumb disclaimers ("don't put any animals in microwaves") in this world.

Okay, but can anyone find a case where this went to court and a lawyer successfully argued "Your honor, it's not our fault the info was leaked because we put a disclaimer at the bottom of the email when we sent it to the wrong person!"

I'm skeptical.

If the language doesn't actually prevent liability anyway, then get rid of it.

Well, I've had enough of this damn legalese. You see where 200 years of peace gets you? The world used to be run on broad but simple threats, where all we had to do was swear fealty to the man in the iron helmet, or pay the iron price.

The proposition that wrongly addressed mail used to be handled more discreetly is very dubious to me. I doubt it even holds for postal mail. It sounds a lot like the "people used to be more honorable" trope.

> I even still get emails from people who add footers that they own the information and if you receive it wrongfully, you're "required" to delete it

I occasionally get cold emails from recruiters that come with length NDAs at the bottom (often longer than the actual content of the email). I find it utterly silly, but at least it's a strong signal that I won't be missing anything good by ignoring it.

> I even still get emails from people who add footers that they own the information and if you receive it wrongfully, you're "required" to delete it.

In ye olden days if you accidentally received someone else's mail it was a felony to open it. If anything the legal restrictions have been drastically reduced when it comes to email.

Isn't a more apt analogy if you receive mail addressed to you, you open it, and you find a letter meant for someone else?

In that scenario you actually have the legal obligation to return the letter to the post office. The law as written makes it a crime to throw it away or otherwise obstruct delivery. Being asked merely to delete it is a much lower obligation.


I don’t think that applies in the given scenario.

GP said that the letter is addressed to you, but the content is intended for someone else. You can’t obstruct delivery because it’s been delivered to the right place (the address on the envelope).

If obstruction of delivery applied in this case then we would end up with the ludicrous scenario where I could deliberately address letters to you, that are intended for my boss, then demand that you somehow deliver or return the letters once you’ve opened them.

Imagine if I sent you thousands of these letters, it would be a postal and legal DDOS.

There is no requirement that you attempt to effect delivery to the intended recipient. The legal obligation would be met by writing “not at this address” on the envelope and putting it back in the mailbox.

I imagine if you tried to abuse this and then sue your case would be laughed out of court. It would also be awfully expensive; compare the cost of postage to send all those letters with the cost of a rubber stamp to have them returned.

This is true. In a previous job the amount of legal text we needed to include depended on whether we had been sued for something related previously.

Generally I agree that most folks in an organization just don't bother to contribute or push back once 'legal' gets involved. It's a shame - I think if people just tried to understand even a little bit beyond the surface, this whole tweet could have been avoided...

if they had instead just said like "We're compiling something special for May 4th! Tweet @Disney using the hashtag #MayThe4th with your favorite Star Wars memory and you may see your memories featured (subject to TOS)" I think generally it's more honest. but yeah i guess no one cares to be 'that person'.

Seems to me like you're proving GP's point: you had the experience and knowledge to push back against the default legal process. A less experienced person might not have done it.

The Walt Disney Corporation doesn't have social media run by interns, they have one of the more active and experienced social media apparatuses out there. They have to, they're one of the largest media companies in the world.

Ironically they militantly protect their brand, and have conflicting mandates and reasons for doing so (it's not just to keep the image, it's to keep others from deriving value from their brand). Sometimes those mandates interfere with each other, like we see here.

If this is considered world-class social media marketing by the Marketing World, I sense an opportunity for disruption via a social media agency that exclusively employs the Worst Marketers in the Marketing World.

I mean all the power to you if you want to disrupt that market but this isn't a marketing thing, it's the conflicting goals of different organizations within a business.

I'd speculate that the people running social media didn't want to send out these tweets and the people in legal told them they had to, so they do it a week ahead of time on a less visible twitter account and hope it blows over a bit.

I disagree. If you run your social media this ineptly that you become a laughing stock of the platform you are spending millions on to be "cool" and "native", then you have failed. Period.

> corporate self awareness

This is Disney we're talking about. Their legal concerns generally trump everything. It would be ridiculous if not for the fact they're worth billions of dollars and could actually take people to court over small stuff like this.

What are you more scared of, especially when your brand is more or less bulletproof? Some kind of lawsuit, or briefly looking ridiculous on Twitter?


I’m sure that the company who owns somewhere around 35 cable TV channels and half a dozen film studios has the stereotypical intern running social media.

> I think the value of hiring more experienced folks to run social media (i.e. not an intern, someone with any amount of experience) is that they can actually point out how ridiculous this will come off, and argue against this type of tweet.

Is this idea--that major brands let interns run their social media--ever going to die? It's like a decade out of date, at least.

It's a lock that social media at Disney is led by at least one senior official and probably maps down to multiple teams--marketing, comms, customer service, research, etc.--and probably at least one outside agency. I guarantee that Disney has people with experience in social media.

From Disney's perspective, this is a positive thing for their fans because it makes it easier for the fans who want to engage with them to do so--as opposed to the usual thing for user-submitted content, which would be a "microsite" web form with similar terms and conditions.

And there is very little downside. A few grumps will performatively mock Disney on Twitter for a week or so, which happens basically whenever Disney does anything. Knowing which complaints can be ignored is a good example of the benefit of actual experience with brand social media. For example, Apple had the same terms for their Shot On iPhone campaign, which no one seems to even remember:

>1. How to Enter. To enter the Shot On iPhone Challenge (“Contest”), upload the best photograph that you’ve taken on your iPhone within the six months preceding the start of the Contest Period (defined below) (the “Photo”) and Tweet, post, email or upload it, as applicable, with the hashtag #ShotoniPhone for Twitter or Instagram and #ShotoniPhone# or the Chinese localized hashtag #⽤用iPhone拍摄# for Weibo, along with information indicating which iPhone model was used in the image caption, via one of the following methods:

>(i)Via Twitter: Log onto your Twitter account and follow the links and instructions to become a follower of Sponsor’s page on Twitter, located at @Apple, and Tweet the photo with the required hashtags and other information. You must be an active holder of a non-private Twitter account and be a follower of @Apple to be eligible to enter this Contest via Twitter (i.e., you must make sure your tweets are set to “public” and not “private”). You must have a Twitter account to enter via this method. If you do not have a Twitter account, you can create one by visiting www.twitter.com. Twitter accounts are free.

> Providing a Submission constitutes entrant’s consent to give Sponsor a royalty-free, irrevocable, non-exclusive license to use, reproduce, publish and display such Submissions in whole or in part, on a worldwide basis, in any form, media or technology now known or later developed for one year for purposes of implementing the Contest.


Meanwhile the folks who like Disney will feed them content and data for their campaign, which is what they wanted.

This isn’t unique to Disney. Delta Airline has been pushing #SkyMilesLife and other assorted hashtags for a while and they’ve had fine print that says they get a license to use the content with those hashtags. It was even on the signs hanging in the jet bridges back when people used to get on things called airplanes and travel to far off lands.

Now it lives on through a website.

> By tagging photos using #SkyMilesLife and/or #DeltaMedallionLife, user grants Delta Air Lines (and those they authorize) a royalty-free, world-wide, perpetual, non-exclusive license to publicly display, distribute, reproduce and create derivative works of the submissions (“Submissions”), in whole or in part, in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion on Delta websites, commercial products and any other Delta channels, including but not limited to #SkyMilesLife or #DeltaMedallionLife publications. Delta reserves the right to use or not use content tagged #Skymileslife and/or #DeltaMedallionLife and user will not be entitled to compensation if photo is used.

from: https://skymileslife.delta.com/

Apple applied very similar terms to their "Shot on iPhone" campaign. The public outcry was over paying the winners, but Apple's terms for the campaign gave themselves a license to use any submission, which was defined as a public post that used a certain hashtag and contained certain information.

The fact that no one seems to remember this about "Shot on iPhone" is a good clue that few people actually care about this sort of thing.

Which makes sense because from a practical perspective--whether or not these terms are actually enforceable--it's super easy to avoid them. Just don't use that hashtag.

As other have pointed out, one particularity of this hashtag is that it was already heavily used: https://twitter.com/search?q=%23maythe4th%20until%3A2020-03-...

Obviously Disney won't use any tweet sent previous to yesterday, but any one of those persons could have used the hashtag again today without having the faintest clue of what Disney claimed.

On the contrary, it is impossible to avoid them because you have no way of knowing if hashtag is "claimed". The only way for this to work would be for Twitter, Instagram and others to warn you about these special terms when you try to use it.

(from the same site) > By tagging photos using #SkyMilesLife and/or #DeltaMedallionLife, user grants Delta Air Lines (and those they authorize) a royalty-free, world-wide, perpetual, non-exclusive license

I'd argue this is also not limited to Twitter posts?

> User warrants and represents: (a) he/she is the sole and exclusive owner of the Submission, including all rights therein [...]

Because no one ever posted something they didn't own. I don't know the legality of any issues that this can bring, but this seems comical.

What would be the alternative though?

Can any lawyers chime in here? How would that actually hold up in a copyright lawsuit brought against them?

> an any lawyers chime in here?

They're too busy, on the clock

Anyone that responds to this thread legally agrees to surrender all intellectual property posted or mentioned by them in any manner on the internet messaging forum hackernews located at news dot ycombinator dot com, hereunder referred to as the interweb place, will be the sole property of hpoe and those he chooses to designate. These terms may not be modified, altered, or amended except with written agreement of both parties, that is notarized and approved by a Form 23-19B.

Follow up:

Many users of hackernews have expressed their disagreement and disapproval of our TOS. After careful investigation, we realize that our original policy was ill conceived and worded in such a manner that people were aware of the vigorous bodily actions which we were performing on them. Due to this we offer our heartfelt apologies, and a guarantee that we will rewrite this policy in a manner that is so obfuscated that no person can realize they are being thoroughly hosed until our lawyers descend. As part of our apology we are offering a coupon that entitles all parties who were effected to 10% off a year subscription to our service provided they will sign a Form 24-62C releasing hpoe and affiliated parties from all damages done to them or their relatives past, present or future, in perpetuity.

Thank you our customers mean so much to us.

At least it's not arbitration.

Back in the good old days... http://web.archive.org/web/20141020194316/https://www.ycombi...

  Terms of Use
  When you click on a link, our server will send you the corresponding page.

Wow, that's beautiful and hilarious.

It seems like they tightened up their legalese somewhere in early 2017 :(

They should remove this portion of the Terms, it's immoral.

That's disappointing to see. I joined HN before that arbitration agreement was instated, and it somehow slipped past me until now that it was added.

If that agreement was present when I first joined, I might not have joined at all. It's blatantly out of step with HN's community in general, and it makes me lose a bit of respect for YCombinator.


Well at least we can overwhelm them with cases.

stop, it hurts.

“But the plans were on display…”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well, the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice, didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”

The man from Snowcrash quoting HHGTG about a Disney Star Wars promotion. We've reached peak nerd.

At least Vogon poetry is less harmful than Disney drones tweets.

Perfect quote, Hiro :)

Yeah, well anyone reading this message legally agrees to send me $20 in the mail.

Not sure this can work, but something similar did work.

Circa 2000 a French guy wrote a web page with some legal text and an e-mail address. The legal text said that writing to the e-mail address implied acceptation of a processing fee (about 10$ IIRC).

It went as intended: spam robots harvested the address, sent spam. The guy picked a spam e-mail that could be traced to a sender he could sue. He did and the judge ruled in his favour.

Can't find a reference now, but I remember seeing a scan of the court ruling.

I wonder if you could get me extradited, MPAA managed with a UK national (who wasn't even breaking the law in the UK; they were hosting links).

Particularly interested in of they're extradite now, with Covid19 and all.

Plz send mailing address.

Is it $20 each time I read it or just once?

> Anyone that responds to this thread legally

> You agree to not use the Site to: email or otherwise upload [...] software viruses


haha, this reminds me of those posts you'd see on facebook all the time from uninformed users: """I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, messages or posts, both past and future. With this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents. The content of this profile is private and confidential information. """

It's kind of funny when it's a big corporation doing it.

You left out mentioning the "Rome Statute" and Sydney University.

What if I end all my comments with:

© Pier25



Thank you for your question, as a result we now legally own Pier25 and all affiliated intellectual property. Thank you for your time and service.

We've got a 23-19!

Also, I believe the secondary form required is Form 27B/6

Hey wai- ah crap

If I understand disneytermsofuse.com correctly and I am not a lawyer, they’re claiming #MayThe4th is a Disney Product under the terms therein? Or that the Twitter account is a Disney Product? Because the terms say:

> The Disney Products may ask for or allow you to communicate, submit, upload or otherwise make available text, chats, images, audio, video, contest entries or other content (“User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. Whether a Disney Product made available by us or in connection with Disney Products appears on a Disney website, service and/or platform or is integrated with a third-party website, service, application, and/or platform, you may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.

... and they continue like that for a few paragraphs. Doesn’t look like they’ve updated the terms to account for this use.

Either way, reminds me of when sites tried to block “links” or require their website terms to apply to simply linking to a site...

I doubt very much you can enforce a term that is a date in the year.

It's also going to get awkward for the new Dutch branch of DisneyPlus where the date clashes with the yearly WWII memorial.

Apple? Windows? Boss?

Meh, they just want to use people's tweets for a starwars thing. I think they would already be allowed to per the twitter quoting rules (which I haven't read in years). The problem is the way it's worded sounds like it's coming from a legal/marketing/executive alien. Which I guess also ties into star wars.

As you say, per the twitter terms of use they're already allowed to use your tweets in their promo materials if they want. There's no reason they need to force-opt you into their ToS if that's all they want to do.

the problem isn't just that this sounds like it was written by a legal alien, it's that they're claiming rights they don't need. The disney ToS outline all kinds of things that you aren't allowed to do, and it's obviously ridiculous to suggest that you can't include their hashtag in a tweet that violates their ToS.

I don't get the outrage, twitter is public and they want to use fan-created public tweets for some marketing thing. Who cares?

The outrage is that they said that by using a specific hashtag you are agreeing to something. Which taken by itself is outrageous.

Disney should have licensed the rights they need directly from Twitter.

Twitter users already grant Twitter the same rights Disney was asking for. Those rights include letting Twitter share, modify, or re-license the user generated content with few limitations.

Here Disney is trying to clear the rights to include user generated or user provided content in promotional material.

This is similar to how they get the rights to use other contest-like user submissions submitted by email, official Disney forums, apps, or web forms.

However, here they completely misjudged how this looks on Twitter and how the twitter laity would respond.

I don't think they even need to ask. The way I read the terms, they already had it, so I think they are angling to put themselves in control unilaterally and one-up Twitter. Disney's terms have prohibition on "offensive" content, while Twitter's terms acknowledges you maybe exposed to offensive content. Twitter says others may use the content on other media and services:

> This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, Retweet, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Absent another side agreement, I don't think Disney has more or less rights to content posted on Twitter by other users than any other user.

Thus, if they intend to launch a multi-million dollar commercial project using content posted to Twitter, they need to do some work to clear the rights.

The Twitter TOS allows Twitter to do stuff with user posted content. It doesn't allow Disney have unlimited rights to do stuff with content posted at @DisneyPlus by other Twitter users.

Absent licensing the content directly from Twitter, they could have asked for the rights for the few tweets they end up deciding to use. Thinking outloud -- I guess that wouldn't work if they wanted live stream tweets...

edit: fixed - somehow my third para said the opposite of what I meant

Just read their TOS. Check this shit out:

"We do not claim ownership of your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, create derivative works based upon, publicly perform, publicly communicate, make available, and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Disney Products and on third-party websites, services, applications, and/or platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity."

So, @disneyPlus is a platform for The Disney Products. So if someone tweets some fanart with that handle, Disney is free to monetize on it?

That is what Disney hopes to achieve with this whole thing, yes.

Yes. Don't be a fan of Disney.

It just appended a reply to its own tweet that says:

"The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus . These replies may appear in something special on May the 4th!"


Good clarification, but it's still, I think, somewhat unclear whether there's any kind of enforceable contract they could claim there. Here's what that court conversation would likely look like in civil court:

Disney: "As per our first tweet, when the user replied to use with #MayThe4th, they were giving consent to use their tweet in our ad campaign."

Judge: "Were you aware of the first tweet?"

Plaintiff: "No, your honor. I posted my tweet in reply to the Disney+ account because I saw my friends doing it. The thread was ten thousand messages long; I didn't read the whole thing."

Not exactly a slam-dunk case for the plaintiff here, but I'd have to see precedent to show how a TOS that cannot practically be read is enforceable.

Disney's tweets are better understood as a "heads up" to people, than creating any sort of right that Disney will actually try to defend.

There is zero chance Disney will try to argue about this content. If someone complains at all, Disney will just take their tweet down and replace it with another one. There are plenty more fans out there who would be psyched to see their tweet being promoted.

> it's still, I think, somewhat unclear whether there's any kind of enforceable contract they could claim there.

What would be the consideration?

This is the twitter equivalent of the relative posting the not consenting to Facebook's use of their postings.

It actually doesn't seem so bad on looking at it. It seems like they just want to use your tweet in some kind of collage or something and they were trying to cover their bases by claiming the right to do so.

I think it would've been better to say "If you use this hashtag we may retweet you or feature your comment in promotional material" rather than asserting that you would agree to something by using a hashtag.

Yeah, except that I don't think they are allowed to feature your comment in promotional material without consent (tweets aren't public domain to the best of my knowledge). Same way you can't just reuse a Star Wars trailer in your own promotional material.


> B. License from Twitter. Subject to the terms and conditions in this Agreement and the Developer Policy (as a condition to the grant below), Twitter hereby grants you and you accept a non-exclusive, royalty free, non-transferable, non-sublicensable, revocable license solely to:

> 1. Use the Twitter API to integrate Twitter Content into your Services or conduct analysis of such Twitter Content;

> 2. Copy a reasonable amount of and display the Twitter Content on and through your Services to End Users, as permitted by this Agreement;

Point 2, you licensed the content to twitter and they license it via the developer portal.

I’m confused. Isn’t this already true without Disney having to antagonize anyone? Similar to the Instagram/Mashable court case?


I don't see this holding up - especially because it's ripe for abuse. What's to stop me from making a TOS for my own hashtag?

For it not to be held up, someone has to take Disney to court and win. Good luck with that. It's the whole single-digit millionaires don't have effective access to legal system, turned up to 11. I can only see a double-digit billionaire having the resources to fight this to the end.

I have an anecdote about this. I worked at Disney for some time and a coworker was an avid 2nd amendment person. They left their firearm in their car as is legal for any employer with a very short list of exceptions. I think munitions development is one of the exceptions, and Disney qualifies because of their massive fireworks shows. I'm very foggy on these details as it's been many years since. Anyways, he was chatting it up with a security person and it came out in convo that he had his firearm in his car. He was immediately fired and removed from the property. He tried to fight it in court.

Now this individual was remarkably stupid just as a general person, regardless of this event. I don't have any interest in debating the merits of what happened to him one way or the other.

However, it was interesting that the Disney lawyer explicitly informed his lawyer that their strategy would be to just bleed him dry into bankruptcy by getting continuances and stuff forever into the future, which would force him to keep paying his lawyer to show up and do stuff, but would never move the case forward.

If Disney explicitly told this guy's lawyer that was their plan, his lawyer would be game to let them drag it out because he'll get all his attorney's fees back at the end on Disney's dime. You have to legitimately believe you can succeed in court, you cannot just file stuff to slow the process.

Now maybe they just implied that or something, but I very much doubt the story happened exactly as described.

In order for the drag it out and get attorney's fees back plan to work, you have to be really confident you'll win. I doubt that was the case.

Hmm, maybe that was what the plaintiff lawyer said to encourage the guy to drop a case he didn't want to do anymore after learning more of the details.

Often employee-side lawyers take cases based on contingency fees or shared/blended deals that mix hard money with contingency fees. If the case turns out to be a turd, some lawyers do just about anything to get out of it.

On the other hand, Disney's lawyers would have unlimited budgets and would be incentivized in stringing out the case as long as possible to get that sweet Disney money. They would have no interest in encouraging an early settlement unless they thought they would lose.

This is why you only live in states with single-party consent recording privileges and document everything these sleezeballs say. Then hand it over to the judge.

That sounds nice in theory, but the second order effect of that kind of thing happening a lot would be the megacorp lawyer doesn't warn you first. Then, after you are bankrupt, you may or may not figure out what they did to you. But you still lost and you're still bankrupt.

I'm sure the lawyer actually said something much more nuanced that meant more or less the same thing but didn't rise to the level of an actual threat to subvert proceedings in bad faith. Anything that is said between counsel is admissible in court, and if the Disney lawyer did that, not only would that hurt their defense, it could mean ethics complaints and sanctions for the lawyer, personally.

But then your employer pulls out the recording of all the awkward things you said at work.

Not quite. For this to hold up, either:

- everyone has to silently acquiesce to this,

- Disney has to actually file a court case against everyone who violates their "terms" and win them all.

I think they're trying for the first option. Suing thousands of people for stupidly unreasonable reasons is not a good look, especially for a company where image is everything.

Why would Disney have to sue anyone? The violation will come from Disney, not thousands of people.

Disney is saying they have the right to use any tweet containing the hashtag, including your name (and probably profile picture). If they use your tweet and you don't like it, you can sue them for copyright violation or using your name in advertising. However, there is no way in hell you can win that suit, because it is Disney and it will take years or decades and millions of dollars to fight it in the courts.

So if they use your tweet in advertising without your consent, your options are (1) to give up and move on, or (2) to spend the rest of your time on earth and all the money you have and will earn to fight them in courts.

Another option is to collectively create such a massive backlash that they don't dare do this again. Maybe also lots of bots flooding the tag with text that can pass automated screening but is utterly unsuitable for them to publish?

What a pathetic option: we are so powerless that our only recourse is to complain

Yeah it sucks. The real solutions are all political in nature. My hope is that this kind of collective action might ultimately help create the political will needed to doggedly persue IP law reform.

Ah, I see.

Not convinced you'd even a lawyer to fight this though. It's just so obviously wrong.

Disney's strategy here will obviously be to just honor any and all complaints and take that content down.

They gain nothing from a fight, and there are plenty more Star Wars fans out there who would be happy to have their tweets promoted by Disney.

What if Alice and Bob get together and decide that one of then does the same thing like Disney, and the other takes the other to court in order to create a precedence.

Same outcome, just Disney is not involved.

"By creating digital advertising, you agree to pay me, in perpetuity, all profit generated." - Me

There's clearly no legal standing for a 3rd party organization to make blanket agreements for platforms they don't own.

I've been thinking about this all morning and the platform isn't the problem. After all, plenty of software is based on using someone else's platform to form legal agreements.

The problem here is the requirement of Consideration in contracts. Twitter can bind me to their TOU because they give me the ability to use their platform. Disney can't, because they can't stop me from using #MayThe4th on Twitter - there's no consideration from them to me, so there's no contract.

If you could trademark dates, however...

The whole patent and copyright system is ripe for abuse and it never stopped anybody

You don't have millions of dollars for lawyers.

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