Does Mark Cuban Have a Case?

One of these men was on Dancing With the Stars. The other set dancing back ten years. Getty Images

Friday night, Mark Cuban used his Twitter feed to complain about the refs during the Mavericks-Nuggets game. The NBA promptly fined him $25,000.

Cuban didn't gripe about the fine. But he questioned whether or not others can re-publish his words. So Cuban posed a question on his blog: "Are Tweets Copyrighted?"

"I tweeted to the people who follow me," he wrote. "While I never asked that they not distribute it to other tweeters, I did not give anyone permission to republish my tweets in a commercial newspaper, magazine or Web site.

"Is twittering the process of publishing in 140 characters or less, or is it a private communication to those that follow you? Even if you don't block outsiders from seeing it?"

I e-mailed Cuban and he had this to say about the tweets that led to his fine:

"Yes it has a copyright, and my explanation is copyright law," he wrote. "Ask any lawyer."

So I did.

What I found was this: Cuban is right on one issue, wrong on another.

He's right because those specific tweets are subject to copyright—they were original thoughts in a tangible medium. If he had simply replied, "thanks!" to another Twitter user, the word "thanks" obviously can't have a copyright on it. But in this specific instance, he's correct. (Twitter does not own copyright on any of its user's content, according to its terms and conditions).

From some exchanges he had with two bloggers on Twitter, however, he remained adament that news outlets could not republish these particular tweets in full, because they were for his subscribers/followers and them alone.

But Cuban is wrong in this regard, and this is because of fair use.

"In the example behind this story where somebody had re-posted his message in commenting on the NBA fine, it's really quite clear to me that that would be fair use," said Fred von Lohmann, an attorney at the Electronic Frontier Foundation, a group that has specialized in defending speech in the digital realm since 1990. "They are reporting the news about a public figure. Mark Cuban does not independently make money on these Twitter messages, so it's not displacing the market that he has for these copyrighted works. In my view, this is an easy fair use case.

"Cuban would lose if he tried to stop a newspaper, for example, from republishing his Twitter message."

Now, as always, there are some exceptions here. If a newspaper, as von Lohmann noted, decided to republish Cuban's Twitter feed in print under the title of "Mark Cuban's column" with no commentary around it, he might have a case. Or, if someone online took Cuban's feed and his feed alone, and set up an ad-supported blog around it, he might find himself in the right.

But as far a news outlet that's republishing the tweet in reporting a story? He would have little chance of winning a court case.

Cuban is a guy that likes a good discussion. Perhaps his last response back to one of the aforementioned bloggers, NBA FanHouse's Matt Watson, was the most telling one of all:

"I like to create discussion," he wrote. "Makes things interesting."

Even if Cuban is wrong in part of this particular discussion, he certainly succeeded in creating it.


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Greg Oden recently spent a day making McCafe espressos at McDonald's with Ronald McDonald, and he's got the pictures to prove it.

"It's harder than I thought it would be though," he writes. "There's a lot of flavors to choose from and there's a lot you have to remember to make sure you make them right. Ronald was there and I got to work behind the cash register and they even gave me a brown McDonald's apron to wear which I kept and wore around the house. For real I did."


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"I've been on the internet everyday looking at cars," he writes. "Calling the old man and having him give me his thoughts on certain cars too. I pretty much have a list of about 100 cars I want! Crazy! I might have to live in the garage, and put the cars in my house! I've found some nice cars but they are all over the states, which makes it a pain to see them and even get a chance to test drive 'em. I'd like to find someone I can trust to inspect cars for me here in the U.S. as it's a dangerous market. I learned that first hand last year with a Mustang I bought, which turned out to be a fruit you serve with Coke or a cold Corona. (Not a lime). So if you know anybody that knows their stuff and more about cars (older cars) let me know, I'm interested in giving you some pretty worthwhile missions every now and then."