Wednesday, December 12, 2012

Beware the Berner Convention: Terms of Use and Social Media

Nearly everyone uses social media. It is difficult find people who do not. There are many platforms with different concepts and target audiences. But across them all, there are questions about privacy, copyright, and contracts. This arose when a makeshift legal declaration recently trended on Facebook:
In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version.
There are so many things wrong with that. It is a remarkable word to red ink ratio. But, this is an opportunity to think about social media from different angles. So many sites are “free". What’s the real cost of use? We will look at some of the legal issues.

First, there is no Berner Convention. There might be a Bernie Convention where people do this dance and wear cool sunglasses. No Berner Convention. There is a Berne Convention covering copyrighted works, and the United States and many other countries are parties. It is relevant to Facebook, but differently than the statement suggests.

“Declaring" your copyright to the world is meaningless. The Berne Convention directs that copyright exists when an idea takes form. Whenever a creative work becomes fixed, so do rights in the creator, regardless of any “declaration." However, there are things creators can do to improve the protection that copyrights grants. For example, filing for a registered copyright can be a great investment for something that shows a potential to generate revenue (and might be taken by someone else for that purpose): a video game, a book, a movie, a song. Vacation photos might not be worth the fee, since there’s likely no value to third parties.

Second, things like this come far too late, and don’t change the basic proposition of Facebook. Facebook’s easily accessible Statement of Rights and Responsibilities makes clear that, “you own all the content and information you post on Facebook," and:
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.
As long as your things are up on Facebook, Mark Zuckerberg is free to do what he pleases based on that license, but you still own the rights to the work in question. This is one of the click-wrap licenses we mentioned before. As long as the agreement is not unreasonable or unconscionable a court is unlikely to strike it down. If you are uncomfortable with this, you are not alone. But deciding whether these agreements are fair should happen before you click “I Agree". Moreover, without the clickwrap license, Facebook would be unable to function. They would have no legal ability to share the photo you uploaded with anyone, be that friends, family, random strangers, or that ex you’re trying to make jealous.

When you join Facebook or any other social media site, you enter a contract. A contract needs an offer, acceptance and consideration. Facebook offers to let you use their platform to connect with friends, share photos, and so on: those services are consideration. In return, you offer the consideration of letting them use your intellectual property. It is important to be realistic about how they might use it. Maybe one of your photos ends up in an ad. But what is much more valuable is information about you.

By tracking your behavior, sites get an idea of who you are and what you like. They turn to advertisers with this information and sell the opportunity to reach consumers who are apt for certain products. Some companies have figured out how to turn this into a sustainable business models, but many observers remain skeptical on its long-term viability. Warren Buffet’s investment partner Charlie Munger said pointedly, “I don’t invest in what I don’t understand. And I don’t want to understand Facebook."

The challenge of developing a new kind of business is risk. Facebook became ubiquitous rapidly. It remains to be seen whether that growth means they will be profitable in the future. No matter the era or the business, there is no free lunch. Money does not change hands when you sign up for sites like these, but they would not make the service if there was no cash involved. On balance, most people would probably decide that they are OK with sites using their information, provided it stays within certain bounds.

If you are not OK with it, take your profile and your content down. You cannot alter your agreement with Facebook by just saying so. Contracts can be modified, but both parties need to consent. The Facebook Terms of Use were unacceptable to the federal government, so the Government Services Administration negotiated different parameters with Facebook and many other sites. Like a copyright application for your vacation photos, this would probably not be worth your time and money. Even if it were, it seems unlikely you would be able to compel Facebook to negotiate these points.

This hoax did some good: it created a conversation about where these platforms fit in our lives. We share deeply personal things in ways that were not possible fifteen years ago, accessible around the globe. This convenience has its price. Is it right for you? Maybe, maybe not. Whatever you do, do not expect the Berner Convention to bail you out.

Zack Bastian is an official contributor to Law of the Game. A a recent graduate of George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

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