Wednesday, November 28, 2012

Why Posting Copyright "Legalese" on Your Facebook Wall Has ZERO Legal Effect

It's amazing how throwing a few legal terms (aka "legalese") into a sentence can make even the most meaningless of statements sound "official" to the uninformed listener.  Allow me to demonstrate: "Upon expiration of said term, subject to aforementioned encumbrance, legatee passes by joint tenancy with right of survivorship to lease the privity of unencumbered estate as set forth more fully herein pursuant to the nontestamentary instrument established in competing interests which may warrant application of the common law rule to presently existing securities." Did you catch all of that?  Don't worry if you didn't because it is complete gibberish.  A mere collection of legal words strung together that have no more meaning than me saying "supercalifragalisticexpialidocious."  I literally picked the words at random as I skipped through several different pages of one of my old law school textbooks.  But obviously I wouldn't expect most people to know that.  After all, there are roughly 300 million people in this country but only 1 million of them are lawyers.  Which is precisely why the latest Facebook chain letter has been so successful at making its rounds onto so many Facebook profiles.

If you haven't seen it yet (and be thankful if you haven't), over the last few days many Facebook users have posted a chain mail message onto their profiles which, according to the message, protects their copyright interests with respect to any pictures, videos or writings that they might display on their respective Facebook pages.  The message then urges other users to do the same or else risk losing their rights.  A similar chain letter first emerged back in May of this year immediately after Facebook became a publicly traded company on the stock market.  Despite the previous chain mail being completely debunked back in May by every credible source out there (including Facebook itself), this latest chain mail has somehow managed to fool people once again even though it effectively uses the exact same language as the last chain mail.

In the interest of keeping our readers informed, we break down the infamous "Facebook Legal Notice" after the jump:

Take it from Lord Eddard Stark - your status updates have no legal effect.

The full text of the so-called "legal notice" on Facebook:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, graphics, comics, paintings, photos, and videos, etc. (as a result of the Berner Convention). For any and all commercial use of the above my written consent is required in every instance.
(Those reading this may copy and paste this text on their Facebook walls. This will place them under protection of copyright laws. By the present communiqué, I hereby 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 punishable 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, then you may copy and paste this version. If you do not publish a statement at least once, you will be allowing tacitly the use of elements such as your photos, as well as the information contained in your profile status updates.

POINT #1 (What The Heck Is the "Berner" Convetion?)
First and foremost, it's called the "Berne" Convention (B-E-R-N-E), not the "Berner" Convention.  There's no "R" at the end of the word "Berne".  So right off the bat, you already know that this so-called notice can't be too official if they can't even cite to the correct copyright law in the first sentence.

POINT #2 (The UCC Does Not Apply Here):
Next, if you will kindly direct your attention to the last line of the second paragraph, it cites to "UCC 1 1-308-308 1-103."  This is not only substantively incorrect (which we'll get to in a moment) but it is also another typo.  What the original author of this chain mail was trying to cite to was "UCC 1-103" and "UCC 1-308."  These are two sections of the UCC which stands for the Uniform Commercial Code.  It only applies when there is a valid sales contract or commercial transaction between two parties, such as the buying or selling of goods between merchants. Courts rarely apply the UCC outside of the commercial context. See, e.g., DiMario v. Coppola, 10 F. Supp. 2d 213, 233 (E.D.N.Y. 1998) (holding that the UCC does not apply to employment contracts).  In short, the UCC has nothing to do with your relationship to Facebook, let alone your privacy rights or copyright interests.  Putting these words on your Facebook page has about as much legal effect as you declaring that you are officially a resident of the planet Mars. 
UCC Section 1-103 is a general purpose/construction provision of the UCC which in essence simply defines how the UCC is to be construed in your respective state.  In other words, it has nothing to do with Facebook privacy or copyrights.
UCC Section 1-308 was intended to enable a party in a commercial transaction to accept the other side's continued performance of a commercial contract without waiving their right to sue for breach of said commercial contract at some point in the future. Here, there is no commercial contract between you and Facebook.  Thus, this section also has nothing to do with Facebook privacy or copyrights.

[EDITOR'S NOTE: don't even get us started on how irrelevant the Rome Statute is here]

Moving on.

POINT #3 (By Using Facebook You Have Already Given a Copyright License to Facebook)
Getting more to the substance of this so-called "Copyright" notice, the essence of this chain mail notice is that all of your pics, videos, notes, etc. are all protected by copyright law and Facebook has no right to touch your stuff.  Remember when you were a kid and you told your mom or dad "you have no right to touch my stuff in my room"?  Remember that?  Well perhaps some of you had more common sense than to say something that crazy to your folks, but for those of you who suffered from temporary insanity as a child your parents probably responded with something along the lines of "oh, you mean this room located in MY house where I pay the bills?"  And that, ladies and gentlemen, is basically your relationship with Facebook when it comes to posting copyrighted material onto their site.

You, of course, own the copyright to your "stuff" much like a 12 year-old kid owns the PlayStation that he bought using his paper route money.  However, as long as you post your "stuff" on Facebook, you are still living under Facebook's proverbial "roof" so to speak.  In other words, Facebook -- much like the parents of that 12 year-old kid -- has a legal right to access your stuff and move it around as they see fit anywhere within their site.  This is what is known in Copyright Law as a "license."

In order to understand why this Facebook notice is a hoax, you need to know that there is an important difference between a copyright assignment and a copyright license.  A copyright assignment is where you permanently give away your rights as the copyright owner to somebody else.  A copyright license, on the other hand, only gives somebody else temporary permission to use your copyright while you remain the copyright owner at all times.  This latter scenario is what happens to your copyrighted pics, videos, etc. when you become a Facebook user.  You are not giving away any permanent rights to Facebook by posting a copyrighted picture onto your Facebook page.  You are only giving Facebook a temporary license to share it in the newsfeed that all of your friends see whenever you post new pictures or change your status, etc.  If there was any doubt, the Facebook terms of use are clear on this point:
        You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
  1. 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.
In plain English, you don't need to put a notice on your Facebook wall in order to protect your copyrighted stuff. Whatever copyrights you had before you joined Facebook are still yours after you've joined Facebook.  Facebook does not take away your copyrights.  Your copyright interests are already protected by U.S. Copyright Law 17 U.S.C. § 101 et. seq. (for U.S. residents) or whatever copyright law applies in the country where you reside.  And even if they weren't -- which they are -- posting a Facebook status would not change this fact (again, see Ned Stark above).

[FYI: Facebook only uses the above-quoted license language in order to protect themselves from infringing on your copyrights every time they distribute your status updates to other people.  Otherwise Facebook would be in violation every time your friends see your new pictures pop up in their news feed.]

Again, if you post a copyrighted picture, poem or video, etc. onto Facebook, you're only granting Facebook a temporary license to distribute your copyrighted works within the Facebook website.  That's it.  And that license ends whenever you delete your works from Facebook or delete your Facebook page.


So there you have it.  There are many more problems and legal inconsistencies with the so-called "copyright notice" that we could point out but if you understand the 3 points above then you have more than enough ammo to debunk this chain letter.  Next time you see somebody posting it on their Facebook page, please educate them on how they just got suckered by yet another meaningless Facebook chain mail.  Or send them our way and we'll be glad to do it for you.


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