A contrast between the terms of service of former President Donald Trump’s new social networking service Truth Social and those of other platforms provides a window into how platforms approach user intellectual property in a world in which sharing content is easy and protecting it is hard by design.
Truth Social plans a national rollout in early 2022 as an alternative to
The terms of service for Truth Social raise questions about how it wants to fit in the pantheon of social media platforms. The IP guidelines for Trump’s platform struck some copyright attorneys as simultaneously ambiguous, overreaching and in places unenforceable. Several attorneys said the terms appeared cobbled together from various other social media sites and beyond, and raised concern over user rights as currently worded.
A spokesperson for Digital World Acquisition Corp., the special purpose acquisition company created to take the Trump Media and Technology Group public, declined to comment. TMTG spokesperson Roma Daravi didn’t respond to requests for comment.
(1) Who owns rights to social media posts?
Terms of service for large social media platforms like Twitter, Facebook, TikTok, YouTube, and Instagram generally grant the platform a non-exclusive license to any intellectual property that users post. Twitter, for example, says users grant the service “a worldwide, non-exclusive, royalty-free license (with the right to sublicense)” anything users post.
That contractual agreement plus the safe harbor protection in the Digital Millennium Copyright Act provides platforms broad protection against infringement claims. The DMCA shields the sites from liability for user actions if the platform provides proper mechanisms for rightsholders to alert them to infringing content so they can review and remove it.
Attorneys also say there’s little users can really do to avoid granting the license other than not post. But they also say it’s generally just not in the site’s interest to do more than host the content, as the vast amount of it would be impractical to manage.
“They want that license to use everything you post. It’s necessary for them to function. But they don’t want to own the copyright,” copyright attorney Mark Jaffe of TorMark Law LLP said.
(2) What about sharing?
Sites make it easy to share both within the site and to embed content outside of it to maximize engagement, boosting use and ad revenue.
Some terms are expansive. TikTok says it can “use, modify, adapt, reproduce, make derivative works of, publish and/or transmit” user content, or authorize other TikTok users to do so. Twitter has a similar clause, saying posting “authorizes us to make your content available to the rest of the world and to let others” use, copy, reproduce and modify user content.
“We review terms of services with regularity,” copyright attorney Joel Feldman of Greenberg Traurig LLP said. “We’re very cautious whenever a client is going to put something on a platform. We’re concerned with whether or not they’re granting that platform any sorts of rights to repurpose that.”
That doesn’t necessarily mean third parties can freely embed copyright-protected content using the site’s platforms. Sites want users with engaging content to post frequently, so there is a competing incentive to not effectively require users to sacrifice all rights to their posts to all other users.
Under Ninth Circuit’s server test, any embed where a site simply posts a link that causes platform content to appear would theoretically be noninfringing.
But recently a New York district court rejected the test, and Instagram chimed in that its terms don’t automatically grant a sublicense to third-parties who might embed content using their tools.
Regardless, the volume of material shared makes enforcing even what rights are retained impractical through litigation or even DMCA notices.
(3) How is Trump’s site different?
A “submissions” section of Truth Social’s terms of service grants the platform “exclusive rights” to “any questions, comments, suggestions, ideas, feedback or other information regarding the site.”
Attorneys weren’t sure if that was meant to cover user posts, the rights to which don’t appear governed elsewhere. But even if Truth Social wanted to own the copyrights—and therefore the right to block even a creators from using their work—that may not be enforceable, Jaffe said. The Copyright Act says transfer of ownership of a copyright “is not valid” without being “in writing and signed by the owner of the rights.”
Attorneys said the submissions language didn’t mirror that of other platforms’ user post clauses, but instead resembled policies of media companies guarding against accusations of stealing unsolicited ideas or pitches.
“It looks like someone at Truth Social found one of those and thought ‘this is the copyright policy’ without actually understanding that there’s a difference,” Jarvis said. “So I’m pretty sure that’s what happened, and they just didn’t realize it.”
Copyright attorney Judy Endejan of Endejan Law LLC agreed, and added that the terms of service are “obviously designed 100% to protect the Trump site” over users. She noted that while users surrender all rights to submissions, the site has an emphatic section protecting its own IP, and other sections that allow it to terminate user accounts for a wide range offenses.
Users, for example, agree not to “disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site,” which attorneys said seemed at odds with the site’s no-holds-barred free speech stance. There’s also a prohibition on “excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with” others’ “enjoyment of the site.”
(4) IP for me, not for thee?
Truth Social also claims proprietary source code, databases, functionality, software and other proprietary information as its property.
But the creator of Mastodon, a software blueprint for creating a Twitter-like micro-blogging platform, has suggested Truth Social was using its source code and violating its open-source terms. In an Oct. 29 blog post Mastodon gGmbH, a German nonprofit, pointed to Truth Social’s language protecting its proprietary information, and said that it sent Truth Social’s counsel a letter on Oct. 26.
“Based on public reports, we understand that Truth Social used Mastodon’s source code to develop its platform and that users were able to connect with the platform over a network,” Mastodon said in its letter.
Mastodon said Truth Social needed to make its complete source code available within 30 days, or risk losing the license to use it permanently. That would force TMTG to either design or acquire rights to another website framework, or else risk an infringement suit.
Mastodon said its platform is published under the GNU Affero General Public License v. 3.0, which requires users of the source code to make their complete source code, including modifications, public. The group said in a statement that “as we give to the platform operators, so do the platform operators give back to us by providing their improvements for us and everyone to see.” As of Nov. 1, Truth Social hadn’t replied, according to a spokesperson from Mastodon.
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