With the tremendous growth in social media over the past several years, and especially the vast increase in sharing of user-generated content (UGC) on the Internet. there’s been a greater focus on ownership. How do U.S. intellectual property laws affect claims to ownership, and hence permissible use, of Facebook posts, YouTube videos, Twitter tweets, Flickr photos and the like?

The short answer is we don’t know. Because the law is a slowly evolving entity, lagging behind technological change, there are few if any federal or state statutes defining what rights users have to the content they share online at such third-party sites. Those that do exist, like the Anticyber­squatting Consumer Protection Act (15 U.S.C. § 1125(d) and the CAN-SPAM Act (15 U.S.C. § 7701 et seq.) were written in a era before social media, and thus likely do not cover issues such as disputed claims to Twitter handles — which are likely not “domain names” under the ACPA — and Facebook messaging content —which is almost surely not “commercial electronic mail” under CAN-SPAM.

That leaves application of legacy laws, like the Copyright Act, to define the rights and ownership interests of various parties to UGC. And those rights will be established not in general terms, but rather through the cauldron of litigation. The old legal adage that “hard cases make bad law” applies with full force here.

Take the decision of December 2010 in Agence France Press v. Morel (S.D.N.Y.), where a federal district court refused to dismiss a complaint asserting copyright violations for unauth­orized use of photographs posted to TwitPic, a service allowing users to tweet photographs and link to a Web-posted “stream” of the user’s uploaded photos. AFP had taken a news photog­rapher’s TwitPic-posted photos of the Haitian earthquake disaster, added its own copyright notice, and sold them to news outlets worldwide. The court held that Twitter’s “terms of use” – a bilateral contract between each subscriber and the site — did not grant a license to third parties.

That’s simple enough, but hardly answers the question. First, a Web site’s ToS really cannot define the right of people or entities who are not parties to the agreement, or at least third-party beneficiaries.  Second, ToS can establish a consensual regime of permissible use, but a contract cannot — unless a contract of sale, and even than only as to transfer — create intellectual property rights that do not otherwise exist.  If material is not copyrightable or the unauthorized use is permitted by law, the ToS of TwitPic, Twitter and any other site do not define ownership between the UGC creator and a third party.

What the court forgot was that first principles need to be examined first. The reality is that a claim to copyright or other intellectual property ownership interest is abandoned if someone takes their creative work and gives it away to the world without restriction. At least without a copyright watermark or other copyright notice, posting a photo online without restricting access and use of the material should be the legal equivalent of an implied license. Just as abandoned property (unlike lost property) is subject to claim by the state or anyone else, a photograph sent in the open to a site accessible by anyone — not just social media “friends” — and freely downloadable really cannot be claimed as property. Contrast sites, like Flickr, that allow express copyright claims and disabling or downloading by the photographer. In that context, a third party who takes photos for which the photographer has restricted access and asserted ownership cannot be deemed to have an implied license, because the owner has not given his or her work away to the entire world.

In the end, if someone gives UGC away to everyone on the Internet, it is difficult to construct a rationale under which they can legitimately claim IP ownership rights. That’s an entirely separate question from terms of service, though, one that requires “going back to basics.”