The social network Facebook became a social phenomenon that accumulates much of the contemporary social, business, and cultural life of the world. Background information indicates that the site was created by Mark Elliot Zuckerberg, described as a genius programmer while still a teenager, and creator of projects like "Zucknet" (a primitive version of AOL instant messenger), a media player, called "Synapse Media player" (in which Microsoft showed interest), the program "Course Match", which helps students to choose courses, and the so-called "first Facebook"- the site Facemash. This internet site allowed users to compare pictures of classmates and select the one that is "coolest.” Facemash worked just one weekend because of huge site traffic overloads caused an interruption of internet service at Harvard (where Zuckerberg was a student at the time). Post factum Zuckerberg was criticized for this by the student newspaper, as well as classmates, because he used their photos without proper authorization. Given these negatives, Mark Zuckerberg started programming Facebook which was launched on the Internet from his room at Harvard on Feb. 4, 2004. At present, this internet site is owned by Facebook Inc., based in Silicon Valley, California, USA. On 21 July 2010, the youngest billionaire in the USA - Mark Zuckerberg (6.9 billion dollars personal assets) officially reported that the site has reached 500 million users worldwide. An interesting fact is that in 2010, Steven Levy - author of the book "Hackers: Heroes of the Computer Revolution", said that Zuckerberg described himself as a "hacker.” Therefore, at present, Facebook Inc., holds contests called "hackathons" every two months. The goal is for participants to program, present, and complete a software project in a single night. Facebook provides music, food, and beer, and the event is usually attended by participants of the Facebook site, including Zuckerberg. Some people say that Zuckerberg used these hackatons to recruit employees for his company in the beginning, and even today.
Obviously, the magnitude of this website poses some interesting practical issues concerning copyright related to published content on the site as text, pictures, movies, music, and related intellectual property. I think the problem can be reduced to three main points. First - how Facebook uses this content legally? Second - what content on the Facebook site can be classified as copyrighted? Third - what happens when third parties acquire and use copyrighted content from Facebook?
- Copyright clauses imposed by Facebook on users. If a person wants to become a part of the social network Facebook they must agree with certain terms and conditions of the site promulgated in accordance with U.S. copyright law called DMCA (Digital Millennium Copyright Act). I would like to initially explain the specifics of electronically signed contracts under the general terms, as they are important not only for practical reasons. The question of the validity of contracts signed electronically has its substantive dimensions hidden in the possibility that some agreed clauses may be void because they conflict with local or international legislation as such clauses may generally affect users from different countries. Because Facebook’s general conditions and their copyright terms are formulated based on U.S. copyright law, they may find themselves in conflict with other national or international copyright laws such as the Berne Convention or the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Related procedural issues relate to asking whether such electronic clauses and terms can be legally recognized as evidence in a future copyright lawsuit. Bulgarian Civil Procedure Code, as most recently amended, responds positively to this question by allowing electronic documents as evidence in court (Chl.184, Paragraph 1 of the Civil Procedure Code). I comment on Bulgarian legislation, because the parties to an electronic agreement such as the agreement between users and Facebook have the right to choose the law which governs their contractual relationships. If they don’t have a choice, in theory the applicable law would be the law of the country with which the contract is most closely connected - at first glance this would appear to be U.S. copyright law, as this is where Facebook, Inc., the site owner, is located. A curious detail, however, is the fact that when a party is a user (and not a trader), that party can choose the protection granted by the Rome Convention in Art. 5, Paragraph 2, and then apply the mandatory provisions of that party’s national law. This goes to show that if through the site Facebook the copyrights of a Bulgarian author, photographer, musician, scientist, artist, or writer are infringed-, the lawsuit may be conducted under the Bulgarian Law on Copyright and Related Rights (Copyright Law) and/or under the Bulgarian Consumer Protection Act (FCA). As it relates specifically to European users, and to Bulgarian users in particular, I have to say that some general conditions, agreed to electronically, should presumably be regulated by Directive 93/13/EEC (also a part of Bulgarian domestic law), which embodies the rule that clauses of a contract which have not been subject to individual negotiation and therefore the user was not able to influence, are presumed to be unfair and invalid (1). When I researched in detail the terms and conditions of the site Facebook I found that users’ rights are controlled by rights and obligations to which users agree (usually automatically) to become part of the site. This leads to defects in the will, which are caused by a lack of users negotiating the bulk of the general conditions, and the lack of influence of the agreement they share, and which should specify in advance (by mutual exchange of wills) by both sides in a contractual agreement. I think all this creates the risk of existing void clauses in the general terms of Facebook, that although the user has agreed to, do not have binding legal effect. These inherent issues led to the recent widespread public prevalence of a series of "profile declarations" on Facebook, which aimed to explain everything said here, but in a rather naive and unprofessional manner.
After this introductory section, it should be noted that some of the terms and conditions offered by Facebook to each new member are called "Statement of Rights and Responsibilities," and aim to regulate the use of its copyrighted content (even personal data) by the site. For this purpose the so-called agreement on "content concerning intellectual property" ("Intellectual property content" or "IP content" - in short in the article below I have used the abbreviated "IP content") was created. These terms and conditions regulate content including copyright on images and videos, and in combination with the general conditions provides a non-exclusive license to Facebook (so called “Intellectual property license” or “IP license" - in short in the article below I have used the abbreviation "IP License") to use such content. The territorial scope of this license is worldwide. Users also agree that the rights under this Agreement may be subject to a sub-license to third parties by paid or non-paid transactions to use the same "IP content" that the user has posted on Facebook, and therefore is covered by the IP License. According to the wording of the Directive 93/13/EEC this rule may lack legal enforceability, as the volume of these sub-licenses and their territorial reach have not been individually negotiated by European users and are simply accepted without being read by such users. In theory, some authors share the point of view that the inclusion of such unfair terms leads to pre-contractual guilt of the offering party, which subsequently justifies the existence of full or partial invalidity of the licensing agreement. From this perspective, should any sub-license rights granted by Facebook to third parties have any legal effect is a question that at some point may depend on the user. This is a fact because the user can attack any such provisions as invalid, and this can affect a significant financial interest for the Silicon Valley company (Facebook). A clause inserted in the terms and condition provided by Facebook states that the legal effect of this "IP License" shall be terminated only when the user deletes their "IP content" or his account, unless the content has been shared with third parties and they have not deleted it. An interesting point is that even after the deletion of the "IP content," such content still exists in databases of Facebook in so-called "backup copies" for some time (an unspecified period) but without the content being available to third parties. I want only to note that there is no legal basis for making "backup copies" without the consent of the author of a work, and such practice is unknown to Bulgarian Copyright Law, and also in worldwide copyright practice. In my opinion the termination of a user's account is clear statement that he does not want his copyright works to be used in any way, and that the retention of “backup copies” makes no legal sense, and in my opinion such behavior may be a copyright violation. However, if third parties somehow acquired "IP content" of the user and continue to use such content even after deletion of the user’s account, such continued use should be presumed to be in good faith, as the third parties can invoke their rights acquired based on the IP License signed by the consumer. If the user wishes his "IP content" to be totally removed from the profiles of the third parties (users) and/or this use to be discontinued after closing his account, the user must specifically refer this request to Facebook pursuant to Article 5, Paragraph 5 of the "Declaration of Rights and Responsibilities." This rule provides that Facebook must protect the intellectual property rights of its users and if it has information concerning repeated violation of the copyrights of a user, Facebook can take restrictive measures up to closing the offender’s account as a final result (Article 15 of the "Statement of Rights and Responsibilities").
Something else draws immediate attention - the "IP License" has no provisions explicitly referring to literary works and musical works used on Facebook. From this perspective, the interpretation of the "IP License" with the provisions which state that it covers any content that has become part of the site Facebook, I think is generally wrong under Article 18, Paragraph 4 of the "Declaration of Rights and Responsibilities. The scope of the license does not appear to include copyright content in the form of literary and musical works like poems, essays, or parts of literary works that are published on Facebook, or musical works or their parts, which are also made available to users of Facebook. The very expression of these works in the public domain (even by nickname – see Article 7, Paragraph 1 of the CNRA - most people have registered particularly in the so-called "nickname") via electronic media, i.e., Facebook, makes them fit objects of copyright protection, at least in my understanding, this leads to two conclusions. First - obviously in terms of conditions concerning such copyrighted works, Facebook does not explicitly claim their non-exclusive use worldwide by giving sub-licenses to third parties since it is presumed that copyrighted works are covered by the sub-licenses. I think this is due to the underlying concept of Facebook to focus site mainly on images - especially photos and video as copyright, because the site has its own storage platform and the users can "upload" just these objects. Second - the question remains how the user may refer to Facebook for any violation by third parties or the by the site specifically for these copyrights, since they do not appear to be subject to the "IP License," and whether the provisions of Art. 5, item 5 of the "Statement of Rights and Responsibilities" include those objects of copyright? I think the general wording of Article 5, Paragraph 5 of the Declaration suggests the conclusion that unquestionably protected by this agreement and provided for by it are all artistic works in the copyright sense, whether they are subject to the "IP license "or not. A contrary interpretation would unduly narrow - in my opinion, and would be a misinterpretation of the norms and that would harm the rights of users of Facebook, as authors of such artistic works. This also means that, as the literary and musical works are not subject to the "IP License," Facebook cannot use them for his own marketing purposes, for example, similarly to using the profile picture of each user as set forth in Article 2, item 4 of the "Statement of Rights and Responsibilities," which refers to sharing content and information with third parties. Personally, I find no problem in sharing a profile picture with others, especially when such sharing is with the consent of the user, because of the fact that such profile pictures in most cases are not subject to copyright and therefore are not part of the copyright content of the user. Therefore I think is speculative to claim that Facebook violates international law relating to intellectual property only because the name of the user and his profile picture can be transferred for use to advertisers without the express permission of the users. This is not true, because any user can restrict this possibility by adjusting their personal "privacy settings." Contrary interpretation would be presumed void, because the author's consent is required for any use of his works as a fundamental principle of copyright (if profile pictures are considered works of authorship). This interpretation is implemented in Article 10, item 2 of the "Statement of Rights and Responsibilities," which specifically states that such content (profile picture and name) may not be available for use without the consent of user. In my opinion, that stipulation on the use of profile photos and profile real name of each person for advertising included in the terms of Facebook is mostly due to the infamous Section 512 of the DMCA. The underlying notion of that section is the fact that authors of a work are entitled or required to know information about all users who have the opportunity to take part in the relations between them, based on internet session of the same rank. Such session may be, for example, a chat session or images or video sharing session between two users of Facebook in real time. The U.S. Congress saw this need, which is reflected in the DMCA, and its helps the owner of a site (in this case Facebook), to know the basic identity of any alleged offenders using certain Internet services provided by the owner of the site in any given moment. I find this solution to be generally fair, mainly because it helps to identify violators of copyright and/or personal data, both within the framework of the Facebook site, and outside, this method protects against the potential violations of individual rights of users. Why? Firstly, users have agreed (in writing) to be participants in the social network and have accepted the terms and conditions of Facebook concerning their personal data and images (beyond copyright). Secondly, users have agreed with the terms of non-exclusive "IP License" and the right of Facebook to exploit their works and share user’s copyrights with third parties through a non-exclusive license, which is protecting their other individual rights, namely their personal data. Last, but not least, it is important to note the fact that users agreed that they may refer to Facebook information concerning infringement of their copyrights. The opposite view, namely that consumers are "almost robbed by assigning their personal content," I find for the above stated reasons to be rather superficial and not based on the details of the specific provisions of the General Conditions of Facebook and their legal logic. Why has there been no appropriation of copyrighted content of the users by Facebook?
Recently, there have been some classic examples of practical guidance as to how publications on Facebook in the form of literary texts and short essays become works of authorship, in the form of the content of books. One example is the recently issued book “FaceBuki” by the infamous Bulgarian writer Luben Dilov. In that book, he reflects his epigrams, in the form of "wall posts" (publications) posted on the “wall” of his Facebook profile. Contrary to using such content in a book, it can be difficult to argue that each "post" on the social network, individualizing thoughts, ideas, concepts, social or political, news, facts or opinions should be subject to copyright. This view is reflected in global copyright theory, and in the Bulgarian Copyright Law. To be sure, Facebook is used for many quotes from journalism, fiction, poetry, scientific and technical literature. The question of whether such actions constitute copyright infringement or not should be determined by reference to the volume of the publication and to the use of such content after the fact - whether such works are used for personal purposes by users in the case of so-called "fair use (see Article 24 CNRA), or to infringe specific copyrights through actions that could be classified as plagiarism. As I already mentioned, literary works, published on Facebook are not subject to the "IP Licenses," which automatically leads to the conclusion that they are not monitored for possible violations carried out by users, which is a loophole in the copyright protection offered by the site. I realize how difficult it would be for Facebook, in fact, to exanimate the contents of each text. Perhaps that is one of the reasons Facebook does not offer express protection of literature in the “IP license.” The great thing is that, purely technical publication of text files on Facebook is limited to symbols, allowing only brief quotations, arguably falling within the scope of fair use. As I already noted, however, in violation of the literary copyrights, the author - a user may refer to Facebook with the claim to request that Facebook takes appropriate restrictive measures. In my opinion, correspondence concerning this notification and the results from the actions of Facebook can also be used in court as evidence in writing to a prospective copyright claim against the offender, by providing electronic documents individualizing some email exchange, for example.
The arguments that were put forward for literature works published in Facebook are fully applicable to music works posted on the social network. Many authors of music which are using programs and websites for notation and visualization of music, post links to their new works on the social network, in order to be evaluated by their friends, other musicians, fans, producers, etc. As I said, the focus of Facebook is on pictures and video, because the site obviously cannot and does not want to be a direct competitor to YouTube. So, Facebook simply allows authors to post their music works on the site. This “post” actually grants copyright protection to the music works, because that publication is encapsulated with date and time, and it can be used in court as electronic evidence because cannot be manipulated. In practice, this turns out to be a convenient way to prove your copyright as a songwriter by a publication on Facebook, despite the fact that copyright works - in particular music works – appear to be outside of the scope of Facebook’s "IP License" since such works are protectable both within the site and beyond by the legal means already mentioned above.
In conclusion I would like to note that when I was researching cases connected with copyright infringement on Facebook for this article, I was surprised by the lack of such court decisions. Apparently the owners of the site solve their legal problems with out-of-court settlements or refer copyright claims to the general conditions (Article 16, Paragraph 2 of the "Statement of Rights and Responsibilities"). This text precludes the possibility for any user to file a civil suit against Facebook and limits recourse against offenders for all claims against the site Facebook - Article 16, Paragraph 1 of the "Statement of Rights and Responsibilities." Of course, whether that responsibility could be disclaimed or not, depends on whether the relevant clauses of the General Conditions are void, but that option would be assessed in the light of the facts of each individual case. There is also a local venue choice for any arising disputes and such venue is courts in the judicial district of the court of Santa Clara, California. Apparently, this rule is aimed only towards U.S. citizens and legal entities, because as I have said in relation to the rule of Article 5, Paragraph 2 of the Rome Convention and jurisdiction in the rights to intellectual property, specified by the Code of Private International Law (KMCHP) in its Article 13, the Bulgarian courts have jurisdiction over claims for copyright and rights related to copyright, where defense is connected with the territory of Bulgaria.
Author: Mr.Atanas Kostov – attorney at law
(1) Ruschev. I., "Conclusion of contracts in general terms - Problems in doctrine and practice", “Trade and Competition Law" magazine 2012.