who partner with Twitter for the syndication, broadcast, distribution or publication of such
Content on other media and services, subject to our terms and conditions for such Content
use.”^2776 AFP argued that it was a third-party beneficiary of this license between Morel and
Twitter, claiming in particular that the Twitter TOS intended to confer a benefit (in the form of a
license) on Twitter’s other users, for the comments to the Twitter TOS noted that Twitter
encouraged and permitted broad re-use of Content.^2777
The court rejected this argument, noting that the test for determining whether a contract
was made for the benefit of a third party is whether an intent to benefit a third party appears from
the terms of the contract. A third party may be a third-party beneficiary to a contract if the terms
of the contract necessarily require that the promissor conferred a benefit on that third party. The
court found that the evidence did not reflect a clear intent to grant AFP a license to remove the
photos at issue from Twitter and license them to third parties, not did it necessarily require such a
license. The Twitter TOS spelled out expressly the entities to whom a license was granted –
Twitter and its partners – and AFP did not contend that it was one of Twitter’s partners.^2778 The
court also noted that the explanatory comments to the TOS recited that “[y]ou retain your rights
to any Content you submit, post or display” and “what’s your is yours – you own your
content.”^2779 Those statements would have no meaning if the Twitter TOS allowed third parties
to remove the content from Twitter and license it to others without the consent of the copyright
holder.^2780
Getty asserted the Section 512(c) safe harbor in its motion for summary judgment as a
defense to any direct or secondary liability on its part. The court rejected Getty’s motion, finding
a material dispute as to whether Getty qualified as a “service provider” for purposes of the safe
harbor. Looking at the text of the definition of “service provider” in Section 512(k) in
conjunction with dictionary definitions of “service,” the court concluded that a “service
provider” is an entity that, in broad terms, facilitates, supports, or enables online access or the
activities of users of the Internet, and an entity directly licensing copyrighted material online
would not be a “service provider.” In the court’s view, licensing copyrighted material online
more closely resembled the mere sale of goods (or intellectual property in this case) than
facilitating users’ activities online. The court noted that every case of which it was aware in
which a party was held to be a “service provider” under Section 512(k) reflected a fact pattern in
which the party claiming the benefit of the DMCA safe harbor was doing something useful for
other entities or individuals, such as providing a file hosting or file sharing platform, rather than
(^2776) Id. at 560.
(^2777) Id. at 560-61.
(^2778) Id. at 561-62.
(^2779) Id. at 563.
(^2780) Id. The court also rejected as a false dichotomy AFP’s argument that either its conduct must have been licensed
or the uncountable number of daily re-tweets on Twitter and in the media where Twitter and TwitPic posts were
copied, reprinted, quoted, and rebroadcast by third parties would all constitute copyright infringements. The
court noted that, even assuming there may be some license to third parties granted by the Twitter TOS – for
example, a license to re-tweet content posted on Twitter – that function of Twitter simply did not necessarily
require the licensed urged by AFP or manifest an intent to grant such an unrestricted license. Id. at 564.