There’s a meme going around on Facebook, saying that you should post a certain legal incantation on your Facebook wall, to reclaim certain rights that Facebook would otherwise be taking from you. There’s an interesting counter-meme in the press now, saying that all of this is pointless and of course you can’t change your rights just by posting a statement on a website. Both memes have something to teach us about perceptions of rights and responsibilities online.
We can break the user meme into two pieces. The first piece, that Facebook has changed its terms of use to take a broader copyright license in users’ postings, appears to be false. Facebook denies it:
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.
The other part of the user meme is more interesting: the idea that by posting a statement on your wall you can claw back copyright rights that you would otherwise have granted to Facebook. This has been dismissed by many commentators as naive–and they might be right–but I think we should look more carefully at it. Some commentators claim that it’s ridiculous to say that merely posting words on a website, where somebody has the ability to read them, can create a binding agreement. But of course users are told all the time that the existence of a statement on a website does constitute an agreement.
Facebook itself seems to claim that the mere posting of words on the Facebook site can create an enforceable agreement. Just read Facebook’s terms of use: “By using or accessing Facebook, you agree to this Statement…” “Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.” Gee, I wonder where users got the idea that posting words on the Facebook site can create an agreement between the user and Facebook whether or not the other party to the agreement has even read it.
Careful readers will have noticed, too, that Facebook’s rebuttal statement did not deny the legal enforceability of the users’ copyright statement. Presumably this is not because Facebook agrees that the statement is enforceable, but because any explanation as to why it should be unenforceable would tend to undermine Facebook’s own claims about its terms of use and related statements.
Now, I’m not claiming that this kind of copyright statement does change the user’s rights. All I’m saying is that it’s not ridiculous for a user to think it might. So let’s skip the scornful denunciations of the popular copyright statement, and talk instead about what does make a unilateral statement enforceable, and what should.
In closing, let me offer my own terms of use, as originally drafted by Cory Doctorow:
READ CAREFULLY. By reading this post you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (“BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
Generally speaking the ability to unilaterally impose a contract is limited to things the unilateral speaker is giving up (which is why privacy policies, at least as they used to be, were enforced by the FTC against the website – they are more or less statements by the website of rights they are giving up, versus statements of rights they are gaining from those who are reading the unilateral statement by the website owner). I don’t think you can automatically carry that analysis over to situations that automatically bind those who read those unilateral statements, and at least so far MOST courts, when confronted with that, would reject the notion and overcome the long-standing rule that simple silence cannot be interpreted as assent to enter into a contract.
(Think of it this way: “Unless you send me an email within 72 hours, you owe me $100.” Do you think my mailbox will be overflowing with checks in the next week because of that? Of course not. )
Having said that…
The rule is under assault, and I’ve seen more than a few courts allow exactly what I would have thought they never would allow. It’s usually cloaked in some notion of economic efficiency, or an element of, “Well, you silly user, you should expect this to be part of the deal anyway, so you don’t have a chance now to object.” All bad bad bad ways to run a legal system, at least IMHO. (My friends who feel the same frequently lament how the original Deacon of Contracts we all studied in law school, Williston, must be turning in his grave today about how the most basic notion of an ‘agreement’ is under assault – that there is actually an ‘agreement’ versus a regulatory act (i.e., a statute) passed by a non-representative body of self-appointed lawmakers, which is effectively what a binding unilaterally imposed ‘contract’ should really be viewed as.)
There are middle points though — For instance, if the website (in our hypothetical at least we’re talking about websites, but this concept applies in many other places in today’s world) allows that some later, consciously taken, act by ‘the other party’ is first necessary before the effectiveness of contract takes effect, then there’s room for reasonable minds to argue about the effectiveness of that contract. (For instance, is ‘staying on the website’ good enough? Does it need to be more, like clicking some functionality of the website? At some point, does this move from the pejoratively described ‘browse-wrap’ to the more accepted (by some) ‘click-wrap’ by virtue of added steps?)
Another middle point is the effectiveness of how an already entered-into contract might be amended, since the original contract itself might contain a clause that suggests that changes can be made by unilateral act and that simple silence on the other side will be good enough to make the change effective. At least there, yet again, reasonable people might argue that the original contract changed the rules well enough such that this ‘silence does it’ instance is acceptable under the law. Others, of course, might argue that at least in certain situations (consumer finance issues, issues involving kids, issues involving healthcare, I’m sure you can think of others) the law should not allow those sorts of attempts to allow unilateral amendments to contracts.
Which is all leading to one more simple idea — None of this lends itself to simplicity of analysis, and we need to be careful in applying what happened in one case more broadly than the example deserves (either because the example is but one example by one court in a world of many courts, or because the example’s facts simply don’t translate to the next problem).
By visiting my web site, you grant me a license to any of your employer’s software patents that I might infringe by running the site…
http://zgp.org/~dmarti/meta/tos/
what about something like this?
Dear Facebook,
The following is in regards to your “Statement of Rights and Responsibilities” and to your assertion that “by using or accessing Facebook, you agree to this Statement, as updated from time to time in accordance with Section 14…” and that my “continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.”
For the record, you are claiming that the continued functionality of my account (i.e. my continued usage of your service) constitutes my acceptance of your unilateral change in our contract. Furthermore, you claim this contract can be altered based on a posting in an area of your website.
In response to this, I am posting my own unilateral changes to our contract. I am disallowing you to sell the information included in my timeline to third parties without my written consent. Likewise, I am disallowing you to give access to my personal information to any government agency without my written consent.
The continued availability of my account for usage constitutes your acceptance of my amended terms. If you disagree with the terms of our new contract as outlined in this wall post, feel free to terminate my account.
Another thought provoking read. Thank you!
Disclaimer: I am not a lawyer, and this is not legal advise…
That goes without saying, but I guess it is polite to say it in these circles. Anyway, as to whether or not copyrights can be obtained simply by stating them or not I don’t know. I know that only one of the many publications my employers produce was sent to the copyright office with a request for copyrights. All the rest are self-published with copyright notices on them. I even put copyright notices on my employers’ websites. Are they really copyrighted or not? IANAL.
However, when it comes to Facebook, despite Facebook’s claim to not be seeking to change their copyright to include user generated content, the reality is they already do this. They may claim they don’t, but they absolutely do, and have no regrets about it.
They have always used information posted to their website to generate revenue any way they see fit. The “Terms of Use” isn’t the only thing that constantly gets changed. Their “Privacy Policy” gets changed regularly too, and changes to that include quite often how they will share the information they poses about their users with their clients (their clients being those that pay them, usually advertisers).
Regardless of copyright law… IANAL. The reality is that anything I post on Facebook (as a user) literally becomes “owned” by Facebook in the simple reality that I have given them control over such information by storing it on their servers. They now control that information, and they can do anything they want it it. They can control who sees it (as they control all of the privacy controls), they can control who it is shared with (as they commonly do with law enforcement even sans warrants), they can and do aggregate it and sell it off to all advertisers, etc. The reality is anything posted on their website becomes theirs to control, legally or not–it is reality.
Speaking of copyrights–I will liken it to a book. It would be like me buying a book and ask a friend to hold onto it for a while. That friend may be a good friend and not read the book. The friend might read the book, assuming that is why I gave it to him. He might mark in the book, or tear out a page, he might even just resell the book (he now controls it). All of this is considered “fair use” in copyright law– with a book–without having signed contracts (contract law) when I gave him the book. How does Facebook “fairly use” the content I give them when there isn’t a signed unchangeable contract?
Overall, this is why I personally prefer to run my own web server, where I control what is public and what is not.
To end with my own terms of use (in my own words and accordance to my perspective):
The above content is now “owned” by freedom-to-tinker.com and those who control aforementioned website. They may do anything they like with it. But I retain my rights to continue to write my thoughts (be them the same or different) to any other website or in any other venue in perpetuity.
I hereby claim all rights to this comment.