Beyond debunking the Facebook Notice

In response to the widespread posting of copyright warnings on Facebook, David Pogue wrote a short blog “You Can Stop Spreading That Facebook Notice Now” which correctly attempted to get people to stop repeating the useless post. His advice was correct – the post doesn’t have any effect – but perhaps there is more to the hoax than his article suggests.

The post quoted by Mr. Pogue is presented as follows:

     In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, 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!

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.

Snopes, the anti-misinformation site, has already debunked this hoax. It cites two other variations. In them, they add some privacy constraints as well:

The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law.


Mr. Pogue explains why he considers the post a hoax, then sites to a Facebook statement and to Snopes for confirmation. He is absolutely right that the post is ineffective. He may not, however, be accurate in other regards.

For example, Facebook explained the falsity as follows: “There is a rumor circulating that Facebook is making a change related to ownership of users’ information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.”

First, the actual terms of the Facebook policy are a bit more nuanced: “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.”

  • The Facebook user owns the copyright in everything she uploads.
  • Facebook gets full use of that content.
  • If the user account is terminated, Facebook can still use the content so long as “your content has been shared with others, and they have not deleted it” – which means most content is never deleted.

So Facebook is completely correct that the posting does not affect the copyright in the posted content, but it fails to completely explain the consequences of the contract.

Second, this is a contract rather than a policy. This is important since contracts can be amended. But only according to the contract terms. In the case of Facebook, this means that only Facebook can propose changes to the contract – not the user – and users agreed that “Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.” This means the language cannot be used as a contractual modification.

Still on contract law, there is the curious reference to the Uniform Commercial Code (UCC). Since the UCC applies to the sale of goods, it has no bearing on a social media user website. Moreover, UCC 1-103 merely recites the proposition that the statute does not eliminate additional common law protections such as “capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, Bankruptcy, or other validating or invalidating cause[s]….” UCC 1-308 is a bit closer to the issue. If the contract had not already been formed, then reserving one’s rights means that the performance under the contract does not automatically mean the contract has been accepted.

The posting may not be a “hoax” so much as a failed attempt to react to the unequal bargaining power between a web site provider and an individual user. That it fails does not make it a joke. The frustration may be very real.

The privacy statements of the attempted reservation of rights similarly fails. Something posted publicly does not become private through a disclaimer. If one’s settings are entirely private and posts are limited to a select group of people, some limited privacy might survive. This statement will not help in that regard.

One final note about Mr. Pogue’s column should also be noted. He chides the hoax author for describing the “Berner Convention.” Mr. Pogue reminds his readers that “you’re already protected by copyright law” – which is true, but ignores the contractual waivers that have limited its scope. He then goes on to say “there’s no such thing as the Berner Convention. There’s a Berne Convention, which covers literary works.”

I am hoping that Mr. Pogue – a journalist who makes his living as a writer and columnist focusing on law and technology – understands that literary works under U.S. and international law include the following under copyright law:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

The Berne Convention coverage is slightly different than the U.S. law (quoted above) in this regard, but it certainly includes all the photographs, music files, videos, poems, and pictures that a person uploads. It is not limited to fictional works of book length or any other more limited definition of literary works.

Mr. Pogue did not say anything of the sort. But the tone and the inference suggest he thinks the reference to the Berner Convention was much more egregious than a typo in the title. And while this doesn’t affect his advice to stop using the clause on Facebook, it makes one wonder – at least a little bit.

So stop using the Facebook disclaimer. Don’t negotiate a contract after you have agreed to its terms. Don’t expect that Facebook’s acknowledgement of user copyrights will actually change the company’s use of the uploaded content. And finally, don’t expect most journalists to understand the difference between copyright, patent, and trademark – they’re just in the business of creating content after all.


Orphan Works Notice of Inquiry ends Jan. 4th, setting the stage for a new era of publishing industry debate on fair use

As 2012 begins to wind down, it is time to turn to the transformation taking place in the publishing sector. 2012 may be marked as the end of the printed book – not because physical publishing has ended but because the ingredients for its demise are now all at hand. Of course, it will continue indefinitely just as vinyl records continue to have a place in the music economy, just not a significant place.

I have previously discussed the broad sweep of changes affecting publishing. SeeForetelling the Future of the Book Business.” Among the issues affecting the future of publishing are the legacy impacts on previously published works. These issues include a range of topics:

  • The meaning of contractual terms for “in print” publications, when a book can be made available digitally or on demand;
  • Derivative rights clauses and media clauses when the parties contemplated only categories such as hard cover, paperback, and trade paperback without regard to digital, audiobook or other repurposing;
  • Non-publishing uses by publishers or other rights holders to scan books in cases where the publisher does not have digital reproduction rights; and
  • The ability of libraries or other owners of particular copies to authorize the digitization of copies when the rights holder cannot be identified – the “orphan works” problem.

The Copyright Office is beginning to grapple with some of these issues, and the concern that is focused most squarely on legal rather than contractual concerns is that of orphan works.

In October 2011, the Copyright Office published “Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document.” The report is framed by the question raised in the Google Books class action litigation which is now in its seventh year:

The question of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” [And the Supreme Court has] noted that it was Congress’s responsibility to adapt the copyright laws in response to changes in technology.[1]

While the report does not focus exclusively on orphan works, it has led the Copyright Office to begin an “initial notice of inquiry.” The request for comments seeks comments on “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the [orphan works] problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.”

Comments are due by January 4, 2013 and may be submitted online.

In the notice of inquiry, the Copyright Office framed the discussion with this comment:

The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, in recent months, the European Commission has adopted measures that would begin to resolve the issue in certain contexts and a number of foreign governments are reviewing or proposing solutions. The Copyright Office seeks comments regarding the current state of play for orphan works.

As litigation continues in the publishing industry, consolidation of the major publishing houses and retailers transform the business landscape, and digital access reshapes consumer behavior, the orphan works issue will increasingly take a back seat to the economic restructuring of the industry. Nonetheless, the manner in which the Copyright Office, and ultimately Congress, deals with the issue will serve as a harbinger for legislative tolerance of the transforming publishing industry. As such, it is a bell-weather for things to come and an important platform to participate in the policies of publishing fair use.

I expect that on the heels of this debate will come the debate about fair use in the academic publishing environment. The scope of fair use for orphan works may also influence this developing public policy debate on the breadth of access to free or low cost teaching materials and the industry’s need to maintain revenue to develop new works.

The best way to shape both these discussions is to participate. The deadline is January 4th.

[1] Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 677 (S.D.N.Y. 2011) (the “Google Books” case) (quoting Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) and Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (citations omitted)); see also Am. Soc’y of Media Photographers, Inc. v. Google Inc., Civil No. 10-2977 (S.D.N.Y.) (companion suit filed by a consortium of visual artists for infringement of visual works in books).

“Hate Crimes, Social Media & Justice” A Documentary Preview & Panel Discussion November 28, 2012

“Hate Crimes, Social Media and Justice,” sponsored by the Law + Informatics Institute, NKU College of Informatics, Harvard Law School’s CHHIRJ, DePaul University’s Center for Justice in Capital Cases, and UCLA, will preview the documentary “Tulsa: Hate Crime Capital?” and provide a panel discussion which is anticipated to receive 1 hour of CLE ethics credit in IN, KY and OH.  Click here to register.The program will explore the impact of hate crimes on society, the role of traditional and social media in shaping that impact and the effectiveness of criminal laws and proceedings for the perpetrators, victims and the broader community. The panel will also address how media bias and sensationalization affect justice and criminal prosecution. Hear from Emmy award-winning filmmaker Rachel Lyon, artist-in-residence at the NKU College of Informatics, and discuss these issues with a panel of experts in law and journalism.


Wed., Nov. 28, 2012

  • 6:00 p.m. Registration
  • 6:15 p.m. – 6:30 p.m. Video
  • 6:30 p.m. – 7:30 p.m. Panel Presentation
  • A reception will follow the program.

Join us on November 28, 2012 at 6:15 p.m. in the Digitorium in Griffin Hall, NKU, Highland Heights, Kentucky. A reception will follow the program.  Click here for directions & a campus map.

Though this event is free to the public, donations are requested to help support completion of the documentary.  Click here to register.

Foretelling the Future of the Book Business; Turow says leverage comes at too high a cost for the literary market

A student of the publishing industry would be amazed at the transformation which has taken place in the last decade. According to the Association of American Publishers, “[t]he eBook phenomenon continued in 2011 with eBooks ranking, for the first time, as the year’s #1 individual format for Adult Fiction.”

This transformation comes at a time when the battle over tablet readers has suddenly heated up. Apple’s lead in tablet computing has slipped to a paltry 50.4% – still the global majority, but a 15% decline in the last quarter. Which of course is before the new Microsoft marketing push for its competing Windows 8 products. Using Google’s Android OS, Samsung has taken away the majority of that market share away from Apple.

An increase in book reader form factors to include Apple, Microsoft, Google powered Samsung (and maybe Sony) does not suggest a fragmented market. (Both Amazon and Barnes & Noble are pushing branded tablets as well.) Instead it suggests that the dominant computer companies are rolling from video games and music distribution into consumption of the publishing industry.

Perhaps this is why antitrust actions continue. The Department of Justice plans to press its case against Apple and publishers MacMillan and Penguin over restraint of trade in the pricing of ebooks on the iTunes platform. Former publishing defendants Hachette Bok Group, HarperCollins Publishers and Simon & Schuster have settled identical charges.

Notably absent from the list of defendants was Random House. Instead of arranging pricing structures with its competitors through a standardized iTunes license, Random House instead elected to grow more powerful by acquiring Penguin. As the New York Times describes the merger, it “narrows the business to a handful of big publishers, and could set off a long-expected round of consolidation as the industry adapts to the digital marketplace.”

The merger combines two European publishing giants – Bertelsmann’s Random House and Pearson’s Penguin, reducing the “big six” by at least one. It may trigger even more. Again from the New York Times:

[T]he major publishers have been expected to join together, getting smaller in number and bigger in size. The other four houses among the so-called Big Six are also owned by larger media conglomerates: HarperCollins, which is part of News Corporation; Macmillan, owned by Georg von Holtzbrinck of Germany; Hachette, whose parent company is Lagardère of France; and Simon & Schuster, a division of CBS. They could all now face increased pressure to consolidate in response to a combined Penguin Random House.

In the blog from Authors Guild (of which I am a member), Scott Turow had this to say:

“Survival of the largest appears to be the message here,” said Scott Turow, Authors Guild president. “Penguin Random House, our first mega-publisher, would have additional negotiating leverage with the bookselling giants, but that leverage would come at a high cost for the literary market and therefore for readers. There are already far too few publishers willing to invest in nonfiction authors, who may require years to research and write histories, biographies, and other works, and in novelists, who may need the help of a substantial publisher to effectively market their books to readers.”

Still, the lesson may be that big wins. The Google Book scanning project has been in litigation for seven years with apathy and partial settlements derailing most of the importance of the litigation. In October 2012, the publishers capitulated and settled. The arrangement involved the Association of American Publishers, along with McGraw-Hill Companies, Pearson Education, Penguin, John Wiley & Sons and Simon & Schuster. The Authors Guild continues to fight, though the relevance of the litigation seems to be waning. The actual use of the digitized books has become more constrained and falls into fair use activities like text searches and archival backups. As a result, the Authors Guild was handed a stunningly lopsided defeat in its action against the HathiTrust, the partnership between Google and the university libraries that allowed digitization of their collections.

These concerns are a far cry from the monopoly concerns leveled at national book retailers a decade ago. In 2011 Borders Books was the latest mega-book retailer to disappear in bankruptcy. (Waldenbooks was a subsidiary disappeared as well.) Crown Books, once the third largest retailer, collapsed a decade earlier. This leaves only Barnes & Noble and Books-A-Million as bookstore retail chains, though Walmart, Costco, and Target sell mass retail. Online Amazon, Barnes & Noble, and Books-A-Million dominate sales.

It has never been easier for an author to publish materials for the world to see or even to place works into national distribution. The only thing the new publishing order lacks is infrastructure to support nurturing talent and carefully editing works. Larger publishers rely more on backlists and less on new authors. Fewer editors spend less time on more manuscripts. Research and factual works are mined by researchers using word searches and shoddy research that diminishes the need to acquire actual copies of those works.

Arbitrary legal barriers to the transformation are irrelevant or even counter-productive. Antitrust suits will simply change who will dominate the new, concentrated landscape. Nonetheless, it is important to note the passing of an era even if nothing can be done save mourn its passing.

So, in keeping with the season, sing along – with feeling:

Five major publishers, four ebook sources, three mass market chains, two national bookstores … and just Amazon for all our online needs!

IP for Creative Upstarts papers available for conference on Nov. 9-10, 2012

Presented by Michigan State University College of Law

Intellectual Property, Information & Communications Law Program

Co-sponsored by

       NKU Chase College of Law, Law + Informatics Institute

Copyright Alliance

This conference considers how law and policy can nurture diverse creative industries—”Creative Upstarts”—in the U.S. and abroad. “Creative Upstarts” encompass a range of commercial enterprises from independent artists and producers in developed countries to emerging content industries such as Nigeria’s “Nollywood,” Jamaican dancehall, Brazilian tecnobrega music, and Chinese digital publishing. Their interests have been overlooked in recent debates on intellectual property and information policy. This conference seeks to remedy that gap. Read More


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Professor Sean Pager