On Saturday, I received a transcript of the 24 September hearing (PDF) in the Agence France Presse v. Daniel Morel case. For those who are not familiar with that case, I advice you to read the following articles:

AFP v. Morel: Judges reserves decision in AFP dismissal request (29 September 2010)

AFP v. Morel: the debate rages on (27 September 2010)

Court date set in AFP v. Morel case (22 September 2010)

JFL hits back at critics in AFP/Morel copyright case (14 June 2010)

No Visa support for Morel in Haiti case (09 June 2010)

Agence France Presse's slap to photographers (28 April 2010)

But, here is a bit of background, before we deal with three important questions that this case poses.

The actors
District Judge William H. Pauley III
Representing Agence France Presse and CNN: Joshua J. Kaufman
Representing photographer Daniel Morel: Barbara Hoffman
Representing ABC: Robert Penchina
Representing Getty Images and CBS: James Rosenfeld and Deborah Adler


Background
In the words of Joshua Kaufman: Daniel Morel is a documentary photographer who originally was from Haiti, who has an undisputed great passion and love for Haiti and the Haitian people. He was, for better or worse, in Port-au-Prince when the earthquake struck and had his camera with him. As a photographer, his instinct was to begin taking pictures, and he did. As one dedicated to the people in the country of Haiti, he wanted the world to immediately see the destruction and devastation caused to his beloved country and people. In order to facilitate that, he posted his pictures on Twitter TwitPic, knowing that this would be the way to expose the horrors of the earthquake to the greatest number of people around the world in the quickest amount of time.

Another Twitter user, Lisandro Suero, stole the images and then allowed AFP to distribute them. Morel argues, in his case against AFP, Getty Images, CNN, ABC and CBS that the French news service and Getty had no right to distribute and profit from the images, and that CNN, ABC and CBS, who also used the images after seeing them on Twitter, should not have done so and remove any copyright information.

On the other hand, Agence France Presse and the other defendants accuse Morel of engaging in an “antagonistic assertion of rights” and defamation after the photographer, through his lawyer, contacted various newspapers, magazines and websites that had used the Agence France Presse images (which are his) asking for them to be taken down.

Friday 24 September hearing – the important questions

Was Agence France Presse allowed to distribute the images it had found on Twitter and TwitPic?

And was Agence France Presse aware that Daniel Morel had shot the images – not Lisandro Suero?

Agence France Presse has asked the court to dismiss Morel’s claim that the news service illegally distributed and profited from his images. However, according to the court transcript, Agence France Presse believed it had the right to use the images as the photographer agreed to Twitter’s terms and conditions.

While the judge and Morel argue that the images were posted on TwitPic. Agence France Presse, through its lawyer, says that since TwitPic can only be used in conjunction with Twitter (you need a Twitter account to use TwitPic), Twitter’s terms and conditions apply and Morel, essentially, granted a license to any third-party to use his images.

Kaufman says: My point here is, if you read the language in Twitter, it talks about three classes of people -- Twitter, its partners and others. "And others" has to have a meaning. It is not without meaning. It is there several times. When you leave Twitter and you go to TwitPic, it specifically says, the Twitter terms of service continue to apply. Well, you have to read them together. That's what it says on its face.

However, this exchange between the judge and Kaufman is enlightening:

THE COURT: Mr. Kaufman, were there a number of news sources who asked Mr. Morel to pay for his pictures?

MR. KAUFMAN: Um-hmm.

THE COURT: Is that a yes?

MR. KAUFMAN: Yes, that is a yes.

THE COURT: Oh, good. All right. So if you want to apply your argument about what everybody else is doing, there were numerous news sources who were paying, right?

MR. KAUFMAN: We don't -- they offered to pay. Maybe for an exclusive? Maybe for other pictures? AFP was asking -- was talking to -- trying to reach, they didn't. None of the record that's here says that they were trying to buy these specific pictures. They were trying to reach him. They may have been like Corbis. They wanted to get an exclusive. These pictures were up. He is there with the camera. He may have had 100 more pictures that were not on Twitter, that were not free, that they wanted to purchase. Just because somebody approached him doesn't mean that they -- that the Twitter terms and conditions aren't true. They may not even have understood the terms and conditions from Twitter. Who knows if they had ever bothered? They saw pictures up, and they say, Hey, we want more pictures. We have seen these you have posted to Twitter. Let's get -- do you have any more? Can we get an exclusive from you? That's what the communication is. It wasn't necessary -- there is nothing in the record that contradicts that and says that – that contradicts that position.

Agence France Presse argues that it wasn’t trying to contact Morel to get permission to use the 13 images he had posted on TwitPic, but to get an exclusive or additional images shot by Morel.

Later on, Agence France Presse adds that the reason why it was trying to contact Morel, as well as Suero (who stole Morel’s images and allowed Agence France Presse to distribute them) was because it didn’t know who had shot the images. However, when Suero said, on his Twitter account, that the images were his, the news service thought it could go ahead distributing them.

THE COURT: Your client knew.

MR. KAUFMAN: Knew what, your Honor?

THE COURT: Your client was contacting Morel, wasn't it?

MR. KAUFMAN: He was contacting Morel and he was contacting Suero at the same time.

THE COURT: And your client went ahead --

MR. KAUFMAN: And he hadn't reached either of them.

THE COURT: Excuse me.

MR. KAUFMAN: Sorry.

THE COURT: And your client went ahead and downloaded from Suero.

MR. KAUFMAN: Because Suero was the only one who had an affirmative statement saying it was his. The timeline on that, your Honor, is we tried reach Morel at 6:26 p.m. We couldn't reach him. He didn't respond. At 7:12, we tried to reach Morel again.

THE COURT: He was in Haiti.

MR. KAUFMAN: I understand that. But Suero --

THE COURT: No wonder he couldn't respond.

MR. KAUFMAN: He was responding.

THE COURT: He was in Haiti in the middle of an earthquake.

MR. KAUFMAN: He had responded to other people in this time frame, your Honor. But the picture --

THE COURT: But I'm sure the thief, Mr. Suero, was sitting in his apartment someplace and just waiting to sell the pictures.

MR. KAUFMAN: He hadn't responded either, your Honor. What had happened, if you look at the initial e-mails that are cited, you have people saying, Are these your pictures? There is a whole question as to whose pictures these were. Suero put out a statement saying that they were his pictures. AFP could not reach Mr. Morel.

THE COURT: But your client had a good idea that they were Morel's.

MR. KAUFMAN: No, they didn't. At that point they didn't. They knew it was one of the two, and they didn't know which one. Suero put out an affirmative statement saying they were his. They uploaded from him. As soon as they found out, about six hours later, they were Morel's, they sent out a change -- a caption correction to let everybody know, and that's in the materials that we have provided to you, your Honor, which is referenced in the counterclaim. As soon as they found out that they were Morel's, they sent out a correction to all their subscribers saying, Please correct the caption. These are by Daniel Morel. We have to look at the intent and the knowledge here. They had no knowledge.

THE COURT: That didn't work out very well either, right, according to the counterclaim?

MR. KAUFMAN: Well, no. People, after that, started using -- who got it from AFP started doing it. Whether people later on downstream changed it afterwards? That obviously a lot of them did not do. But we are talking about what AFP did, not what its subscribers did downstream.

[…]

MR. KAUFMAN: They -- it still was knowing. There is nothing alleged here factually that when AFP and the other defendants put up the initial Suero material that they knew that it was false or misleading; and as soon as they found out, they corrected it. They had these two people had the same pictures up there, one claiming affirmatively that they were his; the other just having posted them, which is Mr. Morel. The affirmative statement is by Suero. So they don't know whose pictures they are. It is important to get the pictures out, that was key to everybody, including Mr. Morel, to get the pictures out and widespread.

THE COURT: What about the allegations that AFP contacted Morel first?

MR. KAUFMAN: We tried to reach Morel and Suero both at approximately the same time.

THE COURT: Isn't the allegation that AFP attempted to contact Morel first?

MR. KAUFMAN: Let's see. They tried to reach Morel at 6:01. Suero tweets he has the photos.

THE COURT: I will tell you what. Rather than just reading from whatever documents you have, could you just answer that question? Didn't -- isn't it alleged that AFP contacted Morel first?

MR. KAUFMAN: They sent him a tweet --

THE COURT: That's a yes or a no.

MR. KAUFMAN: Well, when you say contact, they never contact -- Mr. Morel never responded.

THE COURT: Listen to my question. Isn't it alleged that AFP attempted to contact Morel first?

MR. KAUFMAN: Yes, that's correct, your Honor.

Should we understand that Agence France Presse wasn’t able to realise that Daniel Morel was the photographer behind the images? A quick search online would have shown that Morel is an established professional photographer who had worked for the Associated Press for 14 years and is based in Haiti. Lisandro Suero, on the other hand, is an unknown Twitter user with no professional history in photography. Most picture editors would be able to conclude that Morel was the most likely author of the images. Should we believe AFP didn’t know that?

No matter if we do, Agence France Presse still believes that since the images were on Twitter, it could distribute and profit from them. And, in fact, as this exchange shows, Agence France Presse believes it can distribute anything posted on Twitter and TwitPic:

MR. KAUFMAN: It is what Twitter and TwitPic are all about. It is the broadcast -- re-twitting has become part of the lexicon, because these when you post these things up here, it happens again and again, it's what people do at these sites. It is not matter of stealing. It's not a matter --

THE COURT: Wasn't that what Mr. Suero was doing?

MR. KAUFMAN: Suero took them and said they were his own. That was Mr. Suero's problem. He basically took them off his site and said, These are my pictures. That's where Mr. Suero went wrong.

THE COURT: Was your client retweeting the photographs?

MR. KAUFMAN: In the sense that he was re-- he was falling within the license of -- where it says --

THE COURT: No, you were selling -- you were selling those photos for profit and putting your tag line on them, weren't you?

MR. KAUFMAN: Our credit line saying that they were coming from us, yes, saying -- that just identified us as distributor, where it said the ADAFP. It's a distribution tag line.

THE COURT: And you were selling them, right?

MR. KAUFMAN: Yes, we were, your Honor. And the license says, Nonexclusive royalty-free license to reproduce, process, adapt, modify, publish, transmit, display, distribute in any and all media or distribution methods. And later it says here -- there is a line in here where there is no compensation, as well in Twitter. I don't have my finger on it. It says all media, your Honor. When you were making the distinction between Twitter and Twitpics, Twitter is text. All media would include something beyond text. That's photographs as part of all media. And that's why this applies. It allows other people who are subscribers to Twitter, who pick these things up off of Twitter, the content, to do these things.

THE COURT: And you were claiming rights and exercising those rights for profit, right?

MR. KAUFMAN: Yes, your Honor.

[…]

THE COURT: But that's in the Twitter agreement –

MR. KAUFMAN: Correct.

THE COURT: -- about tweets. That's not content, is it?

MR. KAUFMAN: Yeah, I think it applies to --

THE COURT: You do? What's the basis of that?

MR. KAUFMAN: By submitting posting or displaying content --

THE COURT: But a tweet is not the content.

MR. KAUFMAN: Right.

THE COURT: The content here is Mr. Morel's photos.

MR. KAUFMAN: Right. And it says services, plural, your Honor, by the way. When you read this, where it says, under your rights, By submitting, posting or displaying content on or through the services, plural. If it was just Twitter, it would just say the service. Services, we are talking plural, so we are talk Twitter/Twitpics. You have two services. Otherwise it wouldn't be a plural here if it was a singular service.

THE COURT: Really? You sure about that?

MR. KAUFMAN: I believe that's correct. You are the only one who can be sure, your Honor. You are the judge. I think it is.

So, could, tomorrow, Agence France Presse decide that it can distribute any image it has found on TwitPic, even if that image, let's say, belongs to the Associated Press, Reuters or any other organisation? That's what Agence France Presse's lawayer is claiming here...

What did Getty Images do wrong?

Agence France Presse and Getty Images have a long-standing deal that lets the stock library distribute for editorial and commercial purposes all images owned by Agence France Presse. A few hours after the French news agency started distributing Morel’s images under the Lisandro Suero name, these images were made available to Getty’s customers.

However, argues Morel’s lawyer, Getty should have stopped distributing the images once it had learnt that there was a problem with them, which happened in the morning of 13 January.

MS HOFFMAN: … Pursuant to their contract, they have the ability, if there is an issue with respect to copyright infringement, that is brought to their attention to terminate the license. They never did that.

So, why didn't Getty Images stop distributing the image when it learnt that the copyright holder wasn't the one they thought it was?

Who is to blame?

The case pitting Daniel Morel against Agence France Presse, Getty Images, ABC, CBS and CNN has led to heated discussions online. Some accuse Agence France Presse of stealing Morel’s images for profit, while others say Morel should never have put valuable images such as these ones on a social networking site.

However, an important point has, so far, been overlooked – the role of these social networking sites in such incidents.

When Morel learnt that his images had been sold and used by the media without permission, he started writing letters to the different users asking for the images to be taken down. His actions triggered Agence France Presse’s legal claim that Morel was engaging in an antagonistic assertion of rights.

Morel responded with a series of counter-claims. A particular one accuses AFP and the other co-defendants of having “knowingly and willfully altered or removed the Copyright Management Information associated with the Iconic Images, knowingly and willfully distributed works knowing that the CMI was removed or altered, and knowingly and willfully produced and distributed false CMI, all with intent to induce, enable, facilitate or conceal their infringement of the Iconic Images.”

According to the Digital Millennium Copyright Act of 1998, it is a crime to remove any Copyright Management Information.

So, while Agence France Presse, Getty Images, ABC, CBS and CNN are accused of removing such information, the defendants argue that there wasn’t any information to remove, as this exchange shows:

MR. PENCHINA: In terms of the second claim against ABC, it is for removal of the copyright management information, just the removal aspect. And in terms of that, the allegations in the complaint are that ABC downloaded the image from the Twitter page or the Twitpic page. Essentially all it did, as alleged in the complaint, is it clicked on the image and it saved it.

There is the conclusory assertion that ABC removed copyright management information, but all of the exhibits in the complaint itself or in the counterclaims themselves show that there was no copyright management information on the photo, there was no copyright management information that would have come along with it when you download it, and therefore nothing was removed. There is no case that says that you have to reach out and add additional information that may have appeared elsewhere on the page, and that allegation of violating through the removal of copyright management information doesn't state a claim absent something there that was actually removed, which couldn't have happened. And if we downloaded and saved, we got what was there. Whether we should have taken it or shouldn't have taken it is a different issue and will come up later in the case. But for the purposes of copyright management information, if you look at all of the exhibits depicting the image, there is no copyright management information on it and no case says we need to also pull information from elsewhere on the page.

Penchina is right, depending on the methods used to upload images to such social networking and sharing websites. Some sites and software will strip out all metadata and other CMI from images when they are uploaded by their owners.

This raises the question of these sites' roles in such cases. By removing metadata, don't these sites contribute to the dissemination of images without their proper owner’s CMI?

Of course, Agence France Presse is still responsible for its actions. The French news agency should never have used Morel’s images without his permission – the case has shown that Associated Press, NBC and the Wall Street Journal among many others acquired Morel’s images legally – i.e. they paid for them.

However, I can’t shake off the idea that Morel could have been in a better position to assert his rights if TwitPic had not, in the first instance, removed his metadata from his images.

So, clearly, one major question has so far remained unanswered: Why isn’t TwitPic in court today? No matter its role in this case, it clearly should be called to clarify its terms and conditions and relationship with Twitter in matters of copyright.

(Update: Matthias Bruggman (in the comments) is right, TwitPic now doesn't remove an image's metadata. However, in March 2010 it did on some images - strangely, not on all images. It has also come to my attention that some applications used to upload images on services such as TwitPic are also stripping the metadata off when they compress the images for upload.)

This can also serve as a warning to photographers who distribute their images without embedded metadata. In Morel's case, it's unclear whether Morel did or did not include metadata with his images or if the software or site he used to make his images public stripped out his metadata. Whatever happened, the importance of metadata is only re-enforced as this case makes its way through the court.

For more information and debate about this case, visit the Duckrabbit blog, which has very insightful comments about AFP v. Morel.