Published by LawTechie - November 26, 2012 - LawTechie

FacebookThis weekend my Facebook timeline was bombarded with friends and colleagues all re-posting a copy/paste of the following “legal” disclaimer:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, 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!
(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws.) By the present communiqué, I 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 punished 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, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates…

A quick Google search of the above reveals that this was a chain-letter-type-spam from back in May, and I think it bears examining for the lay-reader of this site and for my colleagues (to whom I say “LOL… shame on you”) why the above language is of absolutely no legal significance… No matter how much we’d like to put the privacy genie that we’ve all signed away back in the bottle.

Contracts Cannot Be Unilaterally Modified

It is a testament to Facebook’s notoriety for privacy violation that the above nonsense has gained such traction with its users. It is further testament to Facebook’s popularity that its users would resort to talismanic utterings of nonsensical legalese (again, some of my fellow lawyers have done this!) that users do not simply delete their Facebook accounts when they disagree with Facebook’s policies.

In any case, the crux of the matter is this: Facebook’s Terms of Service and Privacy Policy are legal documents which users accept when they register and every time they continue to use their accounts.

As all lawyers (should) know, the basic elements of contract formation are offer and acceptance. Facebook offers that you use its services in accordance with its terms and conditions, and you accept by using said services. Voilà! And a contract is formed between Facebook and the user.

An existing contract can be modified by a subsequent contract between the same parties. Of course when users post on their Timelines that they do not agree with certain Facebook policies with which they had already agreed by mere virtue of using Facebook, all they are doing is making an offer to Facebook to modify the existing contract. Likewise, unless Marc Zuckerberg (or one of his corporate officers) responds to those Timeline posts with an “I accept,” no contract is formed. No modification is made. The new Facebook guidelines remain unaltered and in force.

In sum, if you do not like Facebook’s policies, deleting your account (and your pictures and content) is the only way to avoid them. Since I do not see users quitting Facebook en masse, it is a fairly safe bet that whatever content users post on Facebook is not of sufficient value to give up their Facebook access — in other words, to the extent that Facebook can now “exploit” your content, you probably consider it a fair trade for the service.

For My Entrepreneur Readers

The significance of the above is that when you modify the terms of use or privacy policy of your online service, you should, like Facebook, create a mechanism for a new offer-acceptance contract formation. Facebook does not by providing its users with ample notice of the proposed changes, and by making it clear in its policies that continued website use equals acceptance.

Copyright Notice and the Berner (sic) Convention

I should note that there is some value in providing notice of your copyright in any copyrightable work that you publish anywhere (on the internet, on Facebook, etc…). That said, doing so on your Facebook Timeline will probably not be considered “sufficient notice” in the legal sense since not every potential infringer is expected to read through several years of your Timeline in search of legal notices. Enterprising artists/photographers solve this problem by slapping a simple watermark on their published works.

Also, there is no such thing as the Berner Convention. The Berne Convention is an international treaty for the harmonization of copyright laws among member states (which includes the US and most of the EU). It is called the Berne Convention because the first meeting among the member states was in Berne, Switzerland in 1886.

On a personal note: If the countries ever decided to have another international copyright convention, we could set it in Black Rock City, Nevada and call it the Burner Convention… That would be cool.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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