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This month, iCommons’ resident copyright columnist, Tobias Schonwetter, discusses his ambivalent relationship with Facebook.
Personally, I don’t like Facebook. And that’s put nicely. What once may have started as a useful tool to stay in contact with people over great distances has, in my opinion, become an often imbecile and time-killing application for the exchange of trivialities with a high danger of addiction. Facebook activities cost businesses a lot of money due to the fact that employees can increasingly not withstand the temptation to use Facebook during working hours. In the UK alone, Facebook is currently estimated to set employers back by £30.8 billion (US$ 63.7 billion) per year. I also strongly believe that Facebook devalues the understanding of real friendship: it is a strange phenomenon when your “friendship” count essentially determines your coolness factor although a closer look reveals that most of these so-called friends do not even deserve to be referred to as acquaintances.
Recent and not so recent conspiracy-fuelled rumours that Facebook was initially started by the CIA as well as the US Department of Defence, and the allegation that Facebook is still used to obtain large amounts of data from its users for these institutions, are far from being proven true – yet, such rumours surely add to the uneasy feeling that I have about Facebook. Against this background, I disapprove of having to agree to the following terms and conditions in order to become a member of Facebook – do you?
“Facebook may also collect information about you from other sources, such as newspapers, blogs, instant messaging services, and other users of the Facebook service through the operation of the service (eg. photo tags) in order to provide you with more useful information and a more personalised experience. By using Facebook, you are consenting to have your personal data transferred to and processed in the United States.”
In a nutshell, I think that rather than frittering away time playing on Facebook, people should read a good book, work, meet real friends in person (just call them if they are too far away!) or start making the world a better place; in short: get a life! And stop asking me all the time “Are you on Facebook?” – I am not and never will be.
All this said, I have to admit though that an incident on Facebook gave me a good laugh the other day when my friend Peter* told me that after a long night out he added “sex” to his list of interests on Facebook. The next morning, he realised that this was probably not the smartest idea and so wisely decided to delete the word again. What he did not take into account was that, as a result, his 100-odd “friends” received an automated notification from Facebook similar to the following: “Just to let you know: Peter is not interested in ‘sex’ anymore!” Well, he obviously had some explaining to do over the next few days, and even the CIA might now be intimately acquainted with his personal life!
There is only one area in which I support Facebook: Copyright Law, the subject of this very column! As an online service provider (OSP), these days Facebook is constantly in danger of being sued and held secondary or contributory liable for copyright infringement taking place on its site by its users. In this respect, I argue vigorously for both a narrow interpretation of the concept of liability and broad and effective exceptions from such liability, often referred to as safe-harbour provisions. I also regret the recent and far-reaching renunciation of liability-limiting principles which were developed by the US Supreme Court in the famous Betamax decision (464 U.S. 417 (1984)). The Supreme Court stated in its decision in 1984 that “[t]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial non-infringing uses”. However, in the online environment, the mere enabling of direct copyright infringement seems to be increasingly sufficient in a growing number of countries to trigger secondary liability, despite the fact that a tool, like Facebook, is indeed capable of, and in fact used for, substantial non-infringing uses. The issue of OSP liability has been widely discussed and I do not want to further contribute to the debate at this point.
What I do want to address, however, is the increasingly heated debate over another clause in Facebook’s terms and conditions. The clause in question reads as follows:
“By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.”
This clause has provoked a number of people to accuse Facebook of stealing content, while others wrote legal nonsense like “it’s good to be aware that your photos become the property of Facebook when they’re on the site”. In fact, the clause simply states that Facebook has the right to use all the content you upload for a variety of reasons until the content is removed by the user. So, what’s the big deal? Without a doubt, there are some OSPs that I expect to be a little bit more discreet with my data – such as banking websites. But Facebook? C’mon. Surely, nobody really wants Facebook to advertise its services widely with his or her drunk pictures from the last “Prom Gone Wrong” party. But if you do not want certain things to be seen by others just don’t upload them onto the Internet in general, or onto Facebook in particular. You might argue that Facebook is only a semi-open network and that content is therefore not meant to be shown to anybody who is not within your network of friends. But, quite frankly, this argument strikes me as fairly short-sighted and naïve. More importantly even, the clause did not appear out of the blue but was already there when you clicked the button saying that you agree to Facebook’s terms and conditions .
From my point of view, iCommons contributor Steve Foerster has elsewhere pointed to the only surprising oddity of the above clause. This is that despite the fact that no one has, of course, the right to grant the required licence pertaining to public domain works or most CC-licensed works created by someone else, the clause stipulates that “you represent and warrant that you have the right to grant" such licence. In this respect only, something is not quite right here and the clause clearly needs to be revised.
So after all, to me Facebook remains a nuisance on the one hand, and an incomprehensible cult on the other - a cult that I do not intend to join. However, from an objective legal perspective, it is noteworthy that Facebook is indeed deserving of protection and that not all recent accusations are justified.
And by the way: If you want to follow my advice and read a good book instead of spending your precious time on Facebook, I have just started reading Cory Doctorow’s “Down And Out In The Magic Kingdom” and so far it is a really cool read! At least cooler than, say, 300 Facebook friends; I promise.
* Name changed
tags: international policy-law facebook copyright-law
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