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.

UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE.

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.

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