Facebook Copyright Statement: Not Entirely Silly

By Edward Felten

Posted on December 4, 2012

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.
The preceding is re-published on TAP with permission by its author, Professor Ed Felten, Director of the Center for Information Technology Policy at Princeton University. “Facebook Copyright Statement: Not Entirely Silly” was originally published November 27, 2012 on Freedom to Tinker.