Tags

, , ,

Although this trend is certainly not new, some of you might have noticed posts like the following making it’s way, like a cascade of dominoes, through the status updates of your Facebook social network:

As of January 4th, 2015 at 5p.m. Eastern standard time, I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, or posts, both past and future. By this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents. The content of this profile is private and confidential information. The violation of privacy can be punished by law (UCC 1-308- 1 1 308-103 and the Rome Statute). NOTE: Facebook is now a public entity. All members must post a note like this. If you prefer, you can copy and paste this version. If you do not publish a statement at least once it will be tactically allowing the use of your photos, as well as the information contained in the profile status updates. DO NOT SHARE. You MUST copy and paste.”

Usually, a fresh wave of these statements pop up anytime Facebook changes their privacy terms or a new article elicits fresh panic on how Facebook uses its users data to generate advertising revenue for itself (which practically every other commercial website does).  The basic idea is that by copying and pasting this statement into your status update, you are denying Facebook the right to use any of your copyrighted content (pictures, status posts, etc. . .) or personal information (name, birth date, email, etc. . .) that you’ve posted or will post at any time for the rest of eternity (if Facebook continues to be relevant for that long. . .anyone remember MySpace???), all in accordance with various, very real sounding, American and International laws and other legal hocus-pocus.

However, legal mumbo-jumbo is EXACTLY what this post.  It means absolutely nothing and will have absolutely no legal impact on what Facebook can do with the content that you’ve shared on that site (I seriously imagine Facebook’s lawyers getting together and reading these posts off to each other, followed by hysterical laughter).

The reasons why this statement and others like it are patently false (IP pun) present an opportunity to touch on a increasingly important and complicated: Copyright on the Web.

It's also a great opportunity to use this classic meme.

It’s also a great opportunity to use this classic meme.

 So let’s go through the above statement line by line to ferret out some of these issues.
However, before we can do that, we need to discuss what, if any, of your content posted to Facebook is protected by U.S. Copyright laws.  Truthfully, a discussion of what is ‘copyrightable’ really requires a separate discussion (which is planned in the near future), but for now, we’ll go at a high level. A copyright protects only “original works of authorship,” which can include literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations, which are fixed in a tangible medium (i.e. written down, recorded, produced on film, painted on a canvas, even scribbled on a sidewalk).  On Facebook, the most likely potentially copyrighted material that you would post would be written works, like status updates, blog posts, notes, comments on other people’s posts, pictures and videos.
However, just because you posted it, doesn’t mean you own it.  Copyrights, being “original works of authorship,” are owned by the author or creator.  So if someone other than you was the one that took those 500 pictures that you posted of your spring break trip, than you don’t own the copyright or have the legal standing to tell Facebook what they can and can’t do with them (and arguably, you are infringing the copyrights of the person who actually took those photos, but that’s a personal problem for another discussion).
And that brings us to status updates and other posts.  Surely you own those without question, right?  You’re the author, you “fixed it in a tangible medium” by typing whatever your post was and clicking the ‘Submit’ button so all the world could enjoy your it at its leisure, so you must own the copyright in that post, right?  Not necessarily.  The keyword that we are looking at now is ‘Original.’  Copyright Law doesn’t protect whatever you bang out on a keyboard (otherwise, we’d have a real crisis with all the content that monkey’s are able to bang out on typewriters these days), it protects only ‘original’ works of authorship.  Which means that they are limits to what can be protected by copyright.  Generally, even though courts usually don’t get into determining whether something is ‘creative’ or not, for something to be copyrighted, there must be some minimal degree of creativity  For example, pure facts and other data are generally not copyrightable.  For instance, Merely stating that “George Washington was the 1st President of the United States” is not a copyrightable since that’s a mere fact.  However, writing an article about Washington’s presidency would be protected by copyright, even though that work would contain many facts, there is ‘minimal creativity’ since the author would have chosen how to present those facts and would provided some of his own creative commentary about George Washington’s presidency in doing so.  As for your status posts, it is very doubtful that simple status updates such as “Going to the Movies!” would be copyrightable since those are hardly creative expressions and themselves are really just bare facts (you planned to go to the movies).  However, a long Facebook posted rant about how the Officials should have ruled that Dez Bryant caught Tony Romo’s pass during the 4th Quarter of the NFL Divisional Playoff Game between the Dallas Cowboys and the Green Bay Packers would be a copyrightable since that would in all likelihood satisfy the minimum creativity requirement (no, I’m not bitter).
So, after all that, it’s probably safe to say that you probably have copyrights to some of the content that you’ve posted, but certainly not all of it and probably not nearly as much as you thought (unless of course all you did was post really boring, pedestrian status updates like “Going to the store” and “Sorting socks.”).
After establishing that you may in fact have some copyright ownership of your Facebook content (unless you have the personality of a yard stick), we can now jump into analyzing the above statement line by line that somehow blocks Facebook from using any of your precious copyright-protect material.
 “As of January 4th, 2015 at 5p.m. Eastern standard time, I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, or posts, both past and future.”
As I said earlier, this sentence, along with the rest of the statement, does nothing.  But, why?  If I have a valid copyright in my content, doesn’t that mean I have exclusive rights to its use and distribution and prevent others from using it?  Yes, very true, but here’s the punchline: You already gave Facebook rights to use your copyrighted content.
How?  Many commercial websites like Facebook are governed by Terms of Use (or a “TOU”).  TOUs are a legal agreement between the those who run the website, and visitors such as yourself who may visit  the website, and those terms govern over a visitor’s activities on the webpage.  Most websites’ TOUs are available via a link at the bottom of the webpage and are accepted by you merely using the site (this is called “web-wrapping”).  Facebook’s TOUs were accepted when you first created your account.  On the Sign-Up page, there was probably some small text that said something along the lines of “By clicking Sign Up, you agree to our Terms.”  Given that you were given full warning that by using Facebook you were agreeing to their terms, and you had to accept the terms by clicking Sign Up in order to proceed, there isn’t really much argument under U.S. law that you entered into a legally binding agreement with Facebook.
Looking at Facebook’s current TOU, they do in fact address how they may use your content, including in paragraphs such as this one:
You give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.
So yes, you already gave Facebook permission to use your content (copyright held by you or not) via a binding agreement and putting a statement on your profile saying otherwise won’t change that.
Wait! Didn’t this statement serve to amend my agreement with Facebook? No it didn’t, and that’s a perfect segway  into the next sentence:
By this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents.
This sentence is a little redundant with the previous one, but amendment (or even revocation of consent) to Facebook’s TOU appears to be what it is trying to establish.  Regardless of its intent, this sentence is also ineffective.  To understand why, we again need to look at Facebook’s TOU that you agreed to.
In the TOU, it very clearly states that any amendments must be signed by Facebook in order to be valid.  So unless you mailed this off to Facebook Corporate Headquarters in Silicon Valley and had someone with signature authority sign off on this statement, it doesn’t change your agreement.
The same goes for trying to revoke your consent or even terminate.  The only way to terminate is for you to completely delete your Facebook account and get off Facebook entirely.
The content of this profile is private and confidential information.
This sentence is just silly.  You can’t claim your profile content is private when you are intentionally sharing it with a bunch of Facebook friends (unless you have no Facebook friends).  It’s definitely not confidential information since confidential information generally ceases to be confidential if you give it to someone without first having them agree that: 1) the info is in fact ‘confidential’ and 2) they agree to keep it that away.  There is nothing in the Facebook TOU to that effect, and we already established that you can’t unilaterally change those terms.
The violation of privacy can be punished by law (UCC 1-308- 1 1 308-103 and the Rome Statute).”
At this point, the statement has dropped the copyright stance and is focusing solely on privacy by citing a bunch of statutes.  Alas, these don’t have any effect either and worse, aren’t even relevant.  ‘UCC’ stands for ‘Uniform Commercial Code.’  The UCC is the end result of a project to come up a uniform statute that codified the existing common law (i.e. court cases and long-standing legal tradition/practice) regarding the sale and transfer of goods, services, and property (i.e., most contracts).  The citation here is mostly meaningless and doesn’t seem to correlate at all with the actually UCC, except in the case of Section 1-308, which deals with rights reserved (again, not applicable).
As for the Rome Statute, the only ‘Rome Statute’ that I can find is the treaty that established the International Criminal Court to deal with perpetrators of atrocities such as genocide and other crimes against humanity.  What Facebook does with your content is hardly a crime against humanity (regardless of your personal feelings on the matter) and this reference  is also meaningless.
In short, statements such as these are pointless exercise due to the existence of a binding agreement between you and Facebook and the limitations there are are in amending that agreement.
However, what steps can be taken to protect the copyrighted content you post online from being misused by the owners of websites you choose to post content to.  A couple of things come to mind:
1) Attempt to Negotiate the Terms of Use.  Although this is likely a fruitless exercise since websites like Facebook often operate with a ‘take it or leave it’ attitude.  You really don’t have any bargaining power to compel Facebook to negotiate since you aren’t paying any money to use their site.  A more practical step would be to:
2) Read and understand the TOUs of a Website before posting content.  Are you happy with what those terms saying about what they can do with your content?  If not, don’t use the site or refrain from posting content that you’d rather the site owners not use in that manner.  Remember, they can only use what you give them access too!