Then there was the contrary rumor: that Facebook automatically owns everything anyway, and nothing a user posts could negate that no matter how much legal terminology is used.
But what’s the truth? What’s really going on here? Are users who fail to post the disclaimer somehow leaving their intellectual property—even their very privacy—open to exploitation?
The “Rights” in “Copyrights”
Sharp observers will notice that copyright law and the concept of right to privacy are different in scope and are protected by different laws. But let’s just focus on copyright law as it relates to a Facebook user’s own intellectual property.
Who owns creative material? If we look at the US Copyright Office’s “Copyright Basics” publication, we find this:
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
In other words, under normal circumstances, an artist automatically owns his or her creation.
The question then becomes: Are these normal circumstances? Or have we, perhaps, allowed Facebook to derive our author rights during the course of registration or regular updates of the terms?
There are two basic ways to share your inherent rights with others: a license agreement, or a transfer agreement.
Licenses come in many forms, all of which allow the copyright owner to retain his or her ownership while allowing others to use the material in certain specified ways—using a company’s software, playing a song during the credits of a movie, showing a documentary in a public place, and so on.
Transfer agreements, however, remove all rights from the copyright owner and shift them to a new owner. After a transfer agreement, the author effectively has no more rights to his or her own work than anyone else.
Statistically, it’s likely that you rarely give terms and conditions a second thought; you want to use a service or product, the only thing standing between you and it is a little button, and you click it.
But this Facebook “disclaimer” serves to remind us of something that should give you pause: Copyright licenses and transfer agreements are often a part of a company’s terms and conditions themselves. You don’t sign a separate copyright transfer agreement when you download software; you just click the box agreeing to the terms that include a usage license. Much like we did when we agreed to Facebook’s terms and conditions when we signed up. Uh-oh.
Take a look at this ominous-sounding excerpt I’ve seen cropping up in more than a few articles lately, originally part of a longer article from Snopes.com:
Facebook users cannot retroactively negate any of the privacy or copyright terms they agreed to when they signed up for their Facebook accounts nor can they unilaterally alter or contradict any new privacy or copyright terms instituted by Facebook simply by posting a contrary legal notice on their Facebook walls.
This begs the question: what were those privacy or copyright terms we agreed to back when we registered our accounts?
Facebook’s Terms and Conditions
As of the publication of this blog post, there were a few interesting points I found when I dug into Facebook’s terms and conditions (to which, if you are a Facebook user, you agreed when you signed up):
You own all of the content and information you post on Facebook.
OK—so Facebook hasn’t snuck a transfer agreement into their terms. We remain the owners of our content. This is good.
But, further down:
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.
Meaning, of course, that Facebook can use your material essentially however it wants, and even after you leave in a huff, any content your friends have shared is still fair game.
But you do have some control: these terms seem to indicate that if your content privacy settings are such that only certain people can see it anyway, Facebook does not currently have the legal right to show your content to a wider audience.
What Facebook Is Really Doing
Facebook responded to the copyright
disclaimer meme with the following bulletin (accessed 11/27/12):
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.
But don’t be too reassured. Just because it is and always has been Facebook’s policy doesn’t mean it always will be.
Notice the claim Facebook debunks: that it is making a change regarding information or content. Its claim is true; their content use policy is not changing. Not yet, anyway. But what they are changing has much wider implications for users.
Facebook is in the process of removing users’ ability to vote on certain policy changes. And that means that if users are no longer able to vote, they could theoretically change their copyright policy any time, and users wouldn’t be able do a single thing about it (except walk, of course, an option that seems not to occur to a surprising amount of people).
Of course, this isn’t exactly the drastic change it may sound like. Will Oremus of Slate.com points out two important facts:
- There has never, over the history of user voting, been a sufficient amount of input to effect any changes at all.
- Only “certain” types of changes were ever allowed to be voted on anyway.
Will Facebook really change their terms and become the legal copyright owner of its users’ material? No one knows. But the literature would seem to indicate that if they did, the only choice any user will have will be to agree to the new terms by continuing to use Facebook, or take down their content before such a term goes into effect.
What’s the bottom line? As good a recap as any comes again from Will Oremus:
Just to be clear, referencing a bunch of legal hokum on your Facebook profile will have absolutely no effect on what Facebook can and cannot do with your information.
Now that that’s settled, let’s get back to the adorable kitty pictures, shall we?
I am not a lawyer, and this blog post is not intended to be legal advice.