Companies, to put things bluntly, can’t do that. “You can not read a contract, but you have to know it exists for it to apply to you. So it wouldn’t work that way,” says Aaron. If Disney owned Twitter — something that almost happened! — then it could give users a boilerplate licensing agreement on signup. But as it stands, Disney still needs to establish that you’ve consented to a deal.
The Disney Plus account tweeted again a few hours later, significantly narrowing down its claims. “The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus,” it said. In other words, Disney is trying to post a contract in a tweet and including a link to the full terms of service, then saying that if you take the specific action of replying, you’re bound to follow their terms.
— Disney+ (@disneyplus) April 27, 2020
That’s a more defensible approach, whether it was Disney’s original intent or a later policy change. “I think they absolutely can do that,” says Aaron. “You might not read them, but you had to have read that entire tweet in order to know what to do,” she says. “I think a court might see a use of that hashtag and the mentioning of Disney Plus as evidence of your assent to that contract, which you had in front of you and had the opportunity to read.” Posting the messages across three tweets with a significant time gap undercuts that, though, because someone could easily reply to the first post without seeing the legal notice.
It’s not ridiculous to be concerned about sweeping legal claims. Disney is a voracious rights-hoarder. In the name of protecting characters like Mickey Mouse, it lobbied for laws that nearly froze the American public domain for decades. It’s made legal grabs like trying to trademark the name of Mexican holiday Día de los Muertos, later withdrawing the application under protest. Bizarrely enough, one Twitter user says that Disney filed a copyright claim against them for posting a screenshot of its tweets. (We’ve reached out to Disney for confirmation.)
Social media has also produced novel and complicated copyright questions. A judge recently ruled that Instagram automatically granted any website a license to embed users’ photos, while a similar legal argument involving Twitter failed.
And Aaron emphasizes that having the legal high ground won’t necessarily stop companies from ripping off users. If someone infringes on your copyright without asking, your recourse is sending a cease-and-desist letter and potentially suing them — and few people have the resources to take on a giant like Disney. “It’s absolutely forgiveness versus permission,” she says.
Disney’s posts, though, indicate that it’s not trawling Twitter for hot Star Wars tweets. It was apparently trying to clear up the legal issues around using fans’ messages — but it only succeeded in freaking them out.