Can tweets be copyrighted?

To bring you up to speed: Guy writes numerous particles of funny (funnyons). Other guy yoinks funnyons from a bunch of people, sticks them in a shoddy book. First guy gets indignant.

I'm probably making the mistake by weighing in on this, so let me preface this by pointing out that I'm not saying that anything posted to Twitter is trivial, or that information wants to be free. Nor am I saying that the book publisher behaved appropriately.

I'm not sure whether to agree with Merlin Mann's indignation at not having his permission asked. But I'm certain that he's wrong on a couple of points of copyright law. Example:

Everybody’s stuff—even the so-called “nothings”—are still THEIR stuff. And, any decision about how that stuff gets used—especially commercially—is solely THEIR decision. That’s not negotiable. And, I’m pointing enthusiastically at several hundred years’ worth of post-Magna Carta law on this matter to back me up here.

This is simply wrong, both from a factual and a moral standpoint. First, take the music business. A radio station doesn't have to ask permission to play a track from a CD. Any regime that requires such permission gives too much power to the copyright holder. Instead, the radio station pays licensing fees, fees which are set by statute, not by negotiation with the copyright holder.

There is no system of licensing fees for tweets, but I think the analogy holds: a system that allows for people to make a nugget of thought available to the public, while allowing that person complete control of how that nugget gets used afterward, is not going to be successful or fair to all parties.

[Another responder asked whether Bartlett's Quotations would be practical under such a system. He has a good point.]

Mann also draws analogies between tweettheft and actual theft, with all the troubles attending to such a comparison.

...imagine a “charity” based on pick-pocketing, or a fast-food chain that incorporates around the model of reselling all the hamburgers and corn on the cob they can manage to steal from your backyard grill.

The fact that the victim of the tweettheft still has full use of the pilfered tweets doesn't automatically excuse the thievery, but it does strain the credibility of the analogies. All it does is promote lazy thinking about copyright law and the nature of creative works.

I think that, in order for Twitter to provide the greatest possible value as a service, we cannot think of it as a stream of billions of tiny, individually copyrighted and licensable chunks of creative work. The nature of the service (API-accessible, third-party friendly, publicly visible, RSS-ified to within an inch of its life) is such that treating it so is impractical and constraining.

Twitter also has a culture that matches the ideological stance of the code. Retweeting, republishing, and favoriting are all encouraged. Things said on Twitter are usually treated as public utterances. If you direct a tweet @cnn, there is a small chance that it will get on CNN (clearly a money-making outlet). Maybe the producers ask permission to 'retweet' on national television, but I doubt it. Moreover, I doubt they'd refer to Twitter at all if they had to, though would that really be a bad thing?

The analogy isn't great, since most people who type @cnn are actually hoping to get their thoughts on TV. But the broader point is that, if someone likes a gem they saw on Twitter, and wants to repost it elsewhere -- even in a form where it will make that person money -- there should be a limit to how much effort the person should have to invest in using it. Mann's proscription: "asking permission, negotiating a license, and paying a mutually agreeable fee to the creator," seems excessive to me.

Things get especially dicey when we start asking what constitutes "making money." I think that because in this instance the infraction is in dead-tree format and available for $5.95, it adds a measure of false clarity to what should be a murky question.

What if the 'republishing' is on my website, drawing content from one of Twitter's canonical RSS feeds? Does it make a difference if I'm using my own favorites list or freeloading off of someone else's? Does it matter if I'm monetizing my website directly? Using the site to enhance my professional reputation or to publicize works of mine that are available for pay?

The worst part is, except possibly for getting ad revenue, you can do it all without leaving the confines of twitter.com itself. If you consider your Twitter feed a part of your online presence, something that makes you money and increases your reputation, then aren't your retweets a form of content theft? Interesting retweets are a big part of the value of @timoreilly's feed, and a big incentive for me to follow him.

I'm not sure I see a bright line between selling a tweet directly, republishing a tweet on an ad-heavy blog, and using it to enhance an online presence from which you derive book sales, contract work, or other monetary gain. Someone might have to explain to me where it lies.

So if the rule for Twitter was, "do as you like, so long as you attribute the source," I think that would be perfectly equitable, and easy to comply with. A rule against commercial use, on the other hand, will lead either to a minefield strewn with limb-severing munitions of arbitrary, or a near total shutdown of the culture that makes Twitter so much fun.