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Facebook Status v. the Law

Posted in Cyberspace Law

By: Lisa Y. Wang and Matthew N. Sugarman 

Some Facebook trends are more fun than others (remember the annual Doppelganger Week and the "25 Random Things About Me" trend in 2009?).  This past week a different Facebook status trend took hold: a copyright disclaimer.  Millions have been posting a copyright notice as their Facebook status because they believe it will prevent Facebook from using their intellectual property (such as pictures, status updates, clever memes, and everything else we put on Facebook) without their permission.  These copyright notice status updates first appeared in May 2012 after Facebook went public and resurfaced over Thanksgiving after a rumored change in Facebook’s user agreement.  And, it’s as ineffective now as it was back then.  Below is the legally worthless notice:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!

 

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

 

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

 

Much has already been written about why this notice is fake (the "Berner Convention" typo instead of "Berne Convention" might have been the first clue, and the fact that the Rome statute governs international war crimes).  Basically, the second you sign up for the site, you grant Facebook a revocable license to use all your intellectual property.  In addition, once you have shared that intellectual property with any of your Facebook friends, Facebook can use anything on your friend’s page based on the license your friend has granted to Facebook.  The copyright notice status update does not retroactively revoke that license.  As Facebook puts it, "For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

So what does this all mean?

When you signed up for Facebook, you entered into a "click-wrap" agreement.  Indeed, you’ve  probably agreed to dozens of these types contracts without realizing it (Open a credit card lately? Valet parked your car?  Boarded a plane?  Installed a computer program? Clicked on a link on the web?).  If you have, you’ve implicitly agreed to the terms of a "shrink-wrap" (named after the shrink-wrap plastic wrapping used to coat software boxes) or "click-wrap" agreement.  For example, when you sign up for Facebook, you agree that "By clicking Sign Up, you agree to our Terms and that you have read our Data Use Policy, including our Cookie Use."   Click on that "Terms" hyperlink and right up front is where you agreed to license Facebook all content that is covered by intellectual property rights.

A "shrink-wrap" or "click-wrap" agreement is a type of contract of adhesion.  A contract of adhesion is a "take it or leave it" arrangement between two parties where one party has all the power.  The weaker party has no opportunity to negotiate the terms of the agreement and he or she cannot obtain the desired product or service unless he or she acquiesces to the form contract (i.e. you cannot sign up for a Facebook account without clicking "Sign Up" and agreeing to Facebook’s Terms, Date Use Policy, and Cookie Use).

Adhesion contracts are generally enforceable.  However, not every term in an adhesion contract is legal.  As a general rule, courts will not enforce a contract clause if that clause is unconscionable.   A contract clause is unconscionable if it is so one-sided that it would "shock the conscience."  For example, in Combs v. PayPal Inc., 218 F. Supp. 2d 1165 (N.D. Cal. 2002), the court found that several terms in PayPal’s terms of use were unconscionable, including their forum selection clause  (a clause that governs where any dispute arising out of the contract will be litigated).  The court stated that a forum selection clause may be unconscionable if the "place or manner" in which arbitration to occur is unreasonable when taking into account "the respective circumstances of the parties."  In Combs, it was unreasonable to expect the individual class action litigants, with average claims of only $55, to travel to Santa Clara, California to arbitrate such small claims.  So if you live in California and agree to a contract that requires all disputes to be litigated in Mongolia, that contract term is probably unconscionable and therefore unenforceable.

Facebook’s "click-wrap" Terms of Use are enforceable, as one user, Mustafa Fteja, found out when he sued Facebook for disabling his account.  A court in New York found that Facebook’s "By clicking Sign Up you agree to our terms" was enforceable as a "click-wrap" agreement and that Facebook’s terms of use were enforceable against Fteja.

So if you really want to prevent Facebook from using your intellectual property, a copyright notice will do nothing.  Instead, don’t post anything you don’t want Facebook to use, pay attention to which Facebook friends can see your photos or other intellectual property (because you can’t control who they share that intellectual property with), or disable your Facebook account altogether.

And for us visual learners, click here for a humorous take on the copyright notice status updates.