Facebook IP nonsense

|The Volokh Conspiracy |

Apparently, the message below (or something like it) has been showing up on several thousand Facebook home pages

Today, November 30, 2014, in response to the Facebook guidelines and under articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data, drawings, paintings, photos, texts etc… published on my profile. For commercial use of the foregoing my written consent is required at all times.

Those reading this text can copy it and paste it on their Facebook wall. This will allow them to place themselves under the protection of copyright. By this release, I tell Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, or to take any other action against me on the basis of this profile and/or its contents. The actions mentioned above apply equally to employees, students, agents and/or other staff under the direction of Facebook.

The contents of my profile includes private information. The violation of my privacy is punished by the law (UCC 1 1-308—308 1—103 and the Rome Statute).

Facebook is now an open capital entity. All members are invited to post a notice of this kind, or if you prefer, you can copy and paste this version. If you have not published this statement at least once, you will tacitly allow the use of elements such as your photos as well as the information contained in your profile."

As Derek Bambauer has already pointed out, there is "so much wrong with this notice it's hard to know where to start." To begin with, the Facebook Terms and Conditions, which would in the first instance govern the question of "ownership" of text/pictures/other content posted on the site, expressly disclaims the "ownership" that the notice rails against.

Sharing Your Content and Information. You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. . . . 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.

Plus, the laws cited in the Notice—"articles L.111, 112 and 113 of the code of intellectual property" and the Uniform Commercial Code 1-1-308 and 1-103, and the "Rome Statute"—are either incomprehensible (the code of intellectual property?) or inapposite. A colleague of mine compared this Notice to the kinds of things prisoners submit to courts all the time—full of jumbled up misstatements and misunderstandings, which usually amount to little more than an incoherent scream of anger.

But that's all lawyer stuff. If I'm Facebook, I'd still be worried—not hysterical, but worried—by developments like this, notwithstanding that they don't make any legal sense at all. To the extent FB users feel like prisoners, trapped inside some system whose rules they're deeply unhappy about (even if only because they don't understand them well), the growth of the platform is at risk. The folks that run FB probably don't feel it's too much of a threat, that FB is too deeply entrenched to suffer from any kind of mass exodus. But the Internet has been the graveyard for some very, very successful applications—Myspace, Altavista, Geocities, Lycos, AOL—and it's not written in stone that Facebook maintains its dominant position forever. I've said it before: Facebook needs to find a way to engage its users in the policy formation process somehow, if only to give users the sense that they have some skin in the policy-making game, that they're not just subject to rules and conditions handed down from on high but participants in a conversation whereby the norms of the community are actually heeded and made part of the discussion. David Johnson, Marc Rotenberg, and I put forward a plan to accomplish that a while back. It's not only the right thing to do—but I would think it's in Facebook's own self-interest to maintain its dominant position.

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