Putting an image onto Twitter or other such services is clearly putting the image for distribution, but under the common terms of that service; you're saying the image is available to see as you posted it.
The issue here is separate, for-profit redistribution in other media, which definitely requires prior consent from the originator.
Sure. Selling it for cash I can understand the argument against that. But has anyone done that? And why would anyone pay given that it's available anyway?
So you can make the argument that publishing the image forms part of a publisher's content proposition from which they benefit (more viewers, more magazine sales or whatever). But you can make the same argument for twitter itself: twitter's value and the wealth of it's owners is derived exclusively from content it's users post. So can a user claim compensation from twitter for the value it has derived from their posts?
The same argument applies to say StackOverflow. I've spent countless hours answering questions and helping people out. SO sell ads against this content, and my content drives search engine click-throughs. Do I have a claim against SO?
Good examples of paid-for TwitPic photos include pictures in the wake of the Haiti earthquake, or the pictures taken of the Boeing which emergency-landed in the Hudson.
> Whey would they pay, given that it's available anyway?
Because they have to—the user only relinquished part of her rights on the picture, namely distribution on the Twitter/TwitPic medium, not her entire rights. If you think that were the TOS to change, the users would still upload pictures, you're so very wrong—see the TwitPic debacle recently and how MobyPicture gained a few k users because they state in their TOS that they can't sell their users' pictures without prior agreement.
You seem to think that your analogy is good, but I don't think it is. Were a magazine to publish SO answers in a Q&A section in a paid magazine, I think SO would be subject to licensing fees. In that case, the relationship between SO and you is governed by their TOS. Check them out, you'll have your answer.
I'm not trying to make an argument that fits within or agrees with current legislation. I am making a purely logical argument - I'm sure for example there's stuff in twitters ToS that give them rights over whatever you post so that you couldn't claim compensations from them, and ditto SO.
> I'm sure for example there's stuff in twitters ToS that give them rights over whatever you post so that you couldn't claim compensations from them, and ditto SO.
Gives them. If you're posting pictures on Twitter or putting comments on SO, you can hardly fault them for displaying those.
But when AP starts selling your twitter pictures or SO comments on its feed, it's a whole different bucket of filth, and a very, very different situation.
We're discussing the second case here, not "I put a comment on news.yc and news.yc displays it".
The issue here is separate, for-profit redistribution in other media, which definitely requires prior consent from the originator.