By Thomas G. C. Hood and Naomi Korn
Advice on social media and copyright law can be found in a raft of websites and publications. Users frequently give away copyright permission in the small print of the terms and conditions of social media platforms, by agreeing to a worldwide, non-exclusive licence for the platform to use user posted material for whatever they want. Laura Krees states that with “general knowledge of copyright law, and a simple pause before you post, you and your marketing team can protect your company from infringement and infringing others.” [i] Naomi Korn Associates advises that when “you upload content, you take on all the responsibility and subsequent risks for the legality of the content that you are posting.” [ii].
Post the acquisition of Twitter by Elon Musk, Twitter users have embarked on a mass exodus onto the Mastodon platform. Many new users of Mastodon believe that it operates in a similar way when it comes to copyright as Twitter. However, Mastodon is distinctly different to Twitter; “instead of it being one big site, it is a lot of sites with a common set of protocols. As such, it is de-centralised.” [iii] The way these individual sites work is that they are each “run by a different person or company, and they can set their own rules about who can join and how they should act while they’re there.” [iv] An individual server “will appear under a different website address and it will be entirely within your own control, although it will be part of the larger Mastodon decentralized network.” [v] One of the clear benefits of these individual servers is that an individual can choose which one they want to join, giving streamlined content that is relevant to that individual. On the flipside, each individual server has the power to choose the rules and obligations it sets on its users within the wider Terms of Service that Mastodon set. Therefore, organisations using Mastodon as a platform to share their exhibitions, collections, archives and other copyright protected works may find that they have two sets of rules to comply and work with.
Regarding the centralised Mastodon Terms of Service, Term 2 states that responsibility of material posted to the platform falls on the user, who has to ensure that it “will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party.” [vi] Further to this, Mastodon has a clear Copyright Infringement policy under Term 8, with the clause encouraging copyright owners to notify Mastodon if there is material on the platform that infringes. Term 8 goes on to state that “Mastodon will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material.” [vii] In the worst case, a repeat infringer will be removed from the platform entirely. Although these terms are similar to the take down approach used by Twitter and other social media platforms in clearly set out Mastodon’s obligations to protect copyright works used on their platform, there is no clarity as to how Mastodon regulates the whole platform alongside each individual service provider. Moreover, and crucially for users, there is a lack of specific terms which address whether Mastodon or the owners of the individual servers receive any licences from Mastodon users to reuse material any material posted on to their platforms.
Our advice for users of Mastodon is therefore to check the terms and conditions of the specific server to see what the owner is permitted to do with any user posts and to consider any implications within the broader considerations of the applicability of the server in question. Ironically, although Twitter and social media platforms “landgrab” the rights in content posted on them, the lack of clarity about Mastodon, brings to mind the saying “better the devil you know”!