People have been spreading a kind of chain letter on Facebook recently to defiantly assert their copyright to everything they've posted there. I haven't seen the chain letter myself, but at least two of my Facebook friends have shared debunkings of the chain letter. Here's one:
http://mashable.com/2012/11/26/viral-privacy-notice-facebook/
Interestingly, as this article makes clear, we've been here before:
http://mashable.com/2012/06/05/facebook-privacy-notice-fake/
This led me to wonder something, though: where exactly is it written in those terms that users have copyright to the content they publish on Facebook?
Well, turns out it's right here:
http://www.facebook.com/legal/terms
The first line of section 2, "Sharing Your Content and Information", clearly states:
"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."
The terms do then go on to say that your act of publishing something on Facebook's site entitles them to reproduce it royalty-free, whenever and wherever they want to -- as long as your privacy settings permit it. Whether Facebook truly honors those privacy settings is, of course, the subject of much debate; but it's reassuring to see that at least Facebook isn't claiming to own anything you post on its site.
So, all the defiant claims of users having copyright to their content aren't so much inaccurate, as they are unnecessary. But when those same users go on to say that Facebook needs their express written permission each and every time the company wants to do something with their content or information, they're dead wrong: they've already signed away that right by joining the site.
"I Agree" buttons aren't necessarily legally binding however. An article on eff.org https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service lays out how the law regarding electronic signatures is or is not legally binding.
ReplyDelete"...it’s not merely clicking the “I Agree” button that creates the legal contract. The issue turns on reasonable notice and opportunity to review—whether the placement of the terms and click-button afforded the user a reasonable opportunity to find and read the terms without much effort. In practice, the enforceability of each TOS implementation often falls on a sliding scale, depending on the degree of notice it provides the user. At one end, presentations that require the user, before clicking, to scroll to the bottom of a set of terms, or through an adjacent scroll box, guarantees the entirety of the TOS appears at least once, even if the user chooses to ignore it, and has been held to be enforceable. At the other end, by contrast, if a user must click on a hyperlink, or series of hyperlinks, to view the terms, the significance of clicking “I Agree” as showing assent diminishes, depending on the difficulty in actually finding the terms and whether a reasonable Internet User would have done so. Finally, in addition to the placement of terms, courts also consider the inclusion of conspicuous statements on websites that instruct users to read the TOS and inform them of the consequence of clicking “I Agree.”"
I for one don;t remember what the TOS for Facebook was like when I signed up. But there could be a case made that their TOS was not enforceable if "reasonable notice" was not made available.
So perhaps we can still sue Facebook after all.