Berne-ing Up Facebook

If you count yourself amongst the one billion-plus monthly active users of social media juggernaut, Facebook, chances are you have seen your newsfeed inundated with a certain “declaration” as of late. For those not privy, this trend consists of users of the online community copying and pasting a short passage into their Facebook statuses in an attempt to secure dominion over the content of their profiles. The substance of the messages in question read as follows:

“In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, graphics, comics, paintings, photos, and videos, etc. (as a result of the Berner [sic] Convention). For any and all commercial use of the above my written consent is required in every instance.

(Those reading this may copy and paste this text on their Facebook walls. This will place them under protection of copyright laws. By the present communiqué, I hereby notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents, and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punishable by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, then you may copy and paste this version. If you do not publish a statement at least once, you will be allowing tacitly the use of elements such as your photos, as well as the information contained in your profile status updates.”

The prevailing notion, evidenced in the language of the declaration’s concluding paragraph, appears to be a sense of fear predicated on the belief that Facebook’s decision to go public (by way of their IPO on May 17, 2012) has resulted in certain negative externalities for users. Those partaking in this cut and paste phenomenon feel that there has been an erosion of the veil of privacy the site once provided its members. Jesse Eastman, a Business Development Manager from Houston, TX, hoped the declaration would insulate his information from extraction by the company. “Privacy is important for a number of reasons,” Eastman opined. “Even if people can see my common purchases and online trends, this can lead them to learning more detailed and intimate information about me. I figured, at the very least, posting this couldn’t hurt.”

For those not versed in the nuances of international contract and IP law, the pointed language of the “communiqué” may appear to provide the necessary safeguards to help prevent the dispersal of one’s personal content. In attempting to protect the sanctity of users-provided information, the declaration’s author seeks to employ legal covenants that include sections of the Uniform Commercial Code, the “Berner [sic] Convention”, and the Rome Statute. The question is: is there any veracity to the promise of protection the declaration provides? Does the bark match its bite?

In short… not quite.

Compared to the intricate complexities that govern much of contract law, contract formation itself is a rather simplistic endeavor, constituted by the occurrence of three distinct actions: an offer; acceptance; and consideration. Application of this well-established principle to the issue at hand dictates that, “by accessing Facebook, you agree to [its terms of use], as updated from time to time…” Furthermore, pursuant to the terms you accept upon joining the site, your continued use of Facebook following any changes to the aforementioned terms constitutes your acceptance of the amended terms.

In discerning the matter at hand, particular interest need also be paid to Section 19.5 of Facebook’s Terms. The provision reads: “Any amendment to or waiver of this Statement must be made in writing and signed by [Facebook]”. As part of the binding contract, all Facebook users agree to in order to access the site’s services, it becomes evident that simply posting this message in one’s “status” will not augment one’s preexisting legal relationship with Facebook, Inc.

While the belief that posting this declaration to one’s Facebook profile will prohibit the corporation’s, “use of elements such as…photos, as well as the information contained in [one’s] profile status updates,” has proven unfounded, the legal conventions the declaration cites warrant further inquiry. Because, as Facebook acknowledges, “nothing in [the Terms] shall prevent [them] from complying with the law,” appropriately applied legal standards could serve to invalidate the specific intellectual property and privacy provisions at which the declaration takes aim.

The declaration first relies on the “Berner Convention”. Although no such, “Berner Convention,” exists, one may assume, arguendo, the author sought to invoke the doctrine of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.

The central purpose of the Convention is premised around the idea that each country of the union must guarantee to authors who are nationals of other member countries the rights that its own laws grant to its nationals. If the work has been first published in a Berne country but the author is a national of a nonunion country, the union country may restrict the protection to the extent that such protection is limited in the country of which the author is a national.

The Convention rests on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that desire to make use of them. These three basic principles are: (1) works originating in one of the contracting states (that is, works the author of which is a national of such a State or works which were first published in a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals; (2) such protection must not be conditional upon compliance with any formality; (3) Such protection is independent of the existence of protection in the country of origin of the work. If, however, a contracting State provides for a longer-term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.

When taken at face value, the provisions detailed within the Berne Convention might seem to offer protection to content published by users through Facebook’s interface, closer examination, however, proves otherwise. The Convention’s ambit extends to the lateral security of already-protected material, State-to-State (for instance, the Convention will almost undoubtedly be invoked in Michael Jordan v. Qiaodan Sportswear Co., Ltd. [a suit brought in China by Michael Jordan alleging that the Chinese sportswear and shoe manufacturer has infringed on Jordan’s ownership of his name and brand]). However, based on Facebook’s Terms of use, the information members post on the website does not fulfill the necessary requirements to solicit protection from the Convention. By using Facebook’s services, you allow the company a license over the material you post. As section 2.1 of the e-community’s Terms states,

“For the content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give [Facebook] the following permissions, subject to your privacy and application settings: you grant [Facebook] 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.”

In addition to the Berne Convention, the declaration also goes on to cite the Uniform Commercial Code (“UCC” or “Code”). As those familiar with the Code know, its edicts are wholly inapplicable under the aforementioned circumstances. The UCC was initially promulgated as a means of harmonizing the laws governing sales contracts and other commercial transactions. Its purview typically encompasses transactions involving personal property. Issues concerning intellectual property, privacy, and service contracts (the two matters of concern here) generally fall outside of the UCC’s intended scope.

The declaration statement specifically cites to Article 1 §§ 1-308 & 1-103, neither of which provides anything of substantive importance with reference to the intellectual property and privacy concerns issued herein. Article 1, §1-308 states, in pertinent part, that, “a party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved.” In this instance, the posting of a declaration in one’s status does not equate to explicitly reserving one’s rights. Any such reservation would need to occur prior to performance of the contract. Even if application of the UCC was relevant to these matters, which it is not, this section would actually serve to reinforce Facebook’s license claims over users’ information – a right the company explicitly reserves in their terms of use.

Article 1, §1-103, which illustrates the construction of the UCC to promote its purposes and policies, and provides the applicability of supplemental principles of law, states, in pertinent part, that, “unless displaced by the particular provisions of the UCC, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal-agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.” Again, this section provides nothing of substance to the declaration; the law and equity concerning the matters at bar are not within the scope of the UCC and as such, are not displaced by any of its provisions.

Lastly, the declaration invokes the Rome Statute. The “Rome Statute,” which the message cites, is shorthand for the Rome Statute of the International Criminal Court, a treaty adopted at a diplomatic conference in Rome on July 17, 1998. The Statute established the International Criminal Court (“ICC”), enunciating the court’s function, jurisdiction, and structure. Under the provisions of the Rome Statute, the ICC can only investigate and prosecute core international crimes. These crimes include genocide, crimes against humanity, war crimes, and crimes of aggression; and may only proceed in situations where states are unable or unwilling to do so themselves.[14] While providing user information to advertisers so they may better target consumers may seem egregious, one would be hard-pressed to elevate such an infraction to the level of genocide, or any of the other international crimes the Statute governs.

If one were to again assume, arguendo, that the declaration’s author actually intended to invoke the Rome Revision of the Berne Convention, Facebook users would still be left without protection. The works protected by the Rome Act of 1928 include every production in the literary, scientific, and artistic domain, regardless of the mode of expression, such as books, pamphlets, and other writings; lectures, addresses, sermons, and other works of the same nature; dramatic or dramatico-musical works, choreographic works, and entertainments in dumb show, the acting form of which is fixed in writing or otherwise; musical compositions; drawings, paintings, works of architecture, sculpture, engraving, and lithography; illustrations, geographical charts, plans, sketches, and plastic works relative to geography, topography, architecture, or science. It also includes translations, adaptations, arrangements of music, and other reproductions in an altered form of a literary or artistic work, as well as collections of different works. As previously noted, however, because use of Facebook is predicated on acceptance of their Terms, Terms that provide the company with license over your work, the Rome Revision does not equate to a security measure Facebook users may seek to employ to enforce their claims of ownership.

This recent uproar by members is not the first time Facebook has come under fire for claims that it deceived consumers by failing to keep their privacy promises. In 2011, the Federal Trade Commission (“FTC”) brought an eight-count complaint against Facebook as part of the agency’s ongoing effort to make sure companies live up to the promises they make to American consumers. The FTC charged that the claims that Facebook made were unfair, deceptive, and in violation of federal law.

Among other counts, the FTC claim states that, “on approximately November 19, 2009, Facebook changed its privacy policy to designate certain user information as “publicly available”. On approximately December 8, 2009, Facebook began implementing the changes referenced in its new policy to make public new in ways certain information that users previously had provided.”

Following a public comment period, the FTC accepted as final a settlement with Facebook resolving the charges that Facebook deceived consumers by telling them they could keep their information private, and then repeatedly allowing it to be shared and made public. The settlement required Facebook to take several steps to make ensure that it lived up to its obligations in the future, including giving consumers clear and prominent notice and obtaining express consent before sharing their information beyond their privacy setting, by maintaining a comprehensive privacy program to protect consumers’ information, and by obtaining biennial privacy audits from an independent third party.[19] It would seem logical that the augmentations to the conditions of use the declaration seeks to insolate users from is much more an outgrowth of this settlement than anything having to do with Facebook’s decision to go public.

For those ready to cast the website in an Orwellian, big brother, light, there remains at least one glimmer of hope. Amendment 3 of Facebook’s Terms of Use notes that, “if more than 7,000 users post a substantive comment on a particular proposed change, [Facebook] will give [users] the opportunity to participate in a vote in which [users] will be provided alternatives. The vote shall be binding on [Facebook, Inc.] if more than 30% of all active registered users as of the date of the notice vote.” The declaration being discussed, however, is not a substantive comment on a particular proposed change. Meaning, individuals seeking any change must still attempt to get 7,000 of their closest friends to make such a comment, and subsequently levy a campaign to get approximately 300 million people to vote in their favor on the matter.

While some individuals are up in arms over what they perceive to be an affront on the use of their information, others have chosen to take a more pragmatic view concerning their expectations of privacy from the website. Michael Monfared, resident of Hoboken, New Jersey, stated that he didn’t think much of all the recent fuss, “I don’t feel like I have any true privacy on Facebook. I feel like that with any social media outlet where you publicly broadcast your private information, you’re losing some degree of privacy. It’s up to each person, individually, to make determinations about what they should and should not put out there about themselves.” Natalya DeSena and Belen Ryan, both from Denver, Colorado, echoed Monfared’s beliefs. “If people want to keep things private,” DeSena stated, “they shouldn’t be sharing them through Facebook, which is largest social network in the world.” Ryan agreed, “when I decided to join and share pictures and personal information on Facebook, I never expected to retain full rights over that material. It’s in the public domain. I would never share anything online that I would be devastated to have Facebook share with anyone else.” 

While opinions concerning expectations of privacy and rights differ on the matter, one this is clear: simply posting a declaration of this type to one’s Facebook profile is not going to confer any legal rights to, and will not alter your legal relationship with Facebook, Inc. At the end of the day, Facebook users are left with two options: (1) Delete their profile and part ways with the company; or, (2) Abide by the Terms mandated by Facebook and continue utilizing their services. That’s it. Whichever option people choose to employ, hopefully, we can at least count on our timelines being a little less congested by this type of propaganda in the coming weeks.

*All quotes and names presented in this article appear with the express consent of each respective individual.

** No members of the Facebook’s community were harmed in the production of this blog article.

[1] Facebook, Key Facts, http://newsroom.fb.com/Key-Facts (last visited Nov. 28, 2012) (detailing Facebook’s active user statistics as of October 2012).

[2] Facebook, Statement of Rights and Responsibilities, http://www.facebook.com/legal/terms (last visited Nov. 28, 2012)

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[6] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886.

[7] Berne Convention, Encyclopedia Britannica Online, http://www.britannica.com/EBchecked/topic/62482/Berne-Convention (last visited Nov. 28, 2012)

[8] Summary of the Berne Convention for the Protection of Artistic Works (1886), World Intellectual Property Organization, http://www.wipo.int/treaties/en/ip/berne/summary_berne.html (last visited Nov. 28, 2012)

[9] King & Wood Mallesons, Michael Jordan vs. Qiaodan Sportswear Co., Ltd. Lawsuit Accepted, China Law Insight (May 4, 2012) 

[10] See supra note 2

[11] American Law Institute, Publications, http://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=86 (last visited Nov. 28, 2012)

[12] U.C.C. §1-308 (1977)

[13] U.C.C §1-103 (1977)

[14] Michael P. Scharf (August 1998). Results of the Rome Conference for an International Criminal Court. The American Society of International Law.

[15] See supra note 2.

[16] Federal Trade Commission, FTC Approves Final Settlement With Facebook, (August 9, 2012)http://www.ftc.gov/opa/2011/11/privacysettlement.shtm

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[20] See supra note 2