Category: Intellectual Property

What Happens to Your Content on Social Media Websites?

We encounter Terms of Use for a lot of our online activities, but when was the last time you actually read through all the terms before agreeing to them?

Two recent issues involving popular social media sites Facebook and Pinterest illustrate the importance of reading and understanding a website’s Terms of Use. Earlier this year Facebook faced litigation over the use of its “Sponsored Stories” advertising feature. The “Sponsored Stories” feature allows Facebook to use a user’s profile picture in advertisements for products or services the user has indicated they “Like”.  While users in this case argued over Facebook’s right to use their image under state right of publicity law, the “Sponsored Stories” feature highlights just one example of the many ways in which users may license their intellectual property rights through their agreement to a website’s Terms of Use. Similarly, the rise of Pinterest has helped to bring attention to Terms of Use issues related to user content. Pinterest’s earlier Terms of Use explicitly stated that by using the site, users granted Pinterest the right to sell the user’s uploaded content. This language worried many people, causing Pinterest to change their Terms of Use. But while Pinterest’s revised Terms of Use removed the “sell” language, many commentators have correctly pointed out that the language seen in Facebook and Pinterest’s Terms of Use is not at all unusual to the language used by various other social media sites.

As a sample we compared the Terms of Use for 5 popular social media sites (Pinterest, Facebook, Instagram, Twitter and Tumblr) to show some common features in these use agreements. Full Terms of Use for each site can be found at:

Pinterest: http://pinterest.com/about/terms/

Facebook: http://www.facebook.com/legal/terms

Instagram: http://instagram.com/legal/terms/

Twitter: http://twitter.com/tos

Tumblr: http://www.tumblr.com/policy/en/terms_of_service

1. Ownership of the uploaded content

Of the 5 social media websites we looked at, all provide that the user retains ownership over their uploaded content.

2. Licensing of user content

While users retains ownership over their uploaded content, all of the sampled sites condition use of the site on the granting of a license to use the uploaded content. For most social media sites, this license calls for non-exclusive, worldwide, royalty-free, transferable and sub-licensable permission to use the uploaded content in accordance with the uses outlined in the agreement. This means that if you sign up for one of these social media sites and upload content such as a photograph, that site has the right to use that photograph anywhere in the world, and without paying you, if the site’s use conforms with the uses set out in the Terms of Use. This also means that the site has the right to allow others to use your work in the same way the site can. But because this license is often times non-exclusive, users retain the right to license out the use of the content to others besides the particular social media site they have uploaded their content to.

The duration of the license, in most cases, extends in some form past the date in which a user may delete their account with the website or remove the content from the website. In most cases, the license extends for a commercially reasonable time period for back up, audit, or archival purposes. Some sites, such as Tumblr, extend the license past termination of services for the express purpose of preserving speech, recognizing that in some circumstances removal of user content that has been commented on by others may result in censorship of speech. For Facebook, the license to use user content ends when the user deletes the content or their Facebook account, with a big exception. If the user has shared their content with others, such as by posting the content on another’s wall, the license does not end unless that other party has also deleted it.

3. How the site may use your content

As discussed above, in most cases use of a website constitutes agreement to the website’s Terms of Use. And in most cases those Terms of Use require a user to grant a license to the website for any user uploaded content. The perimeters of that use are further defined by additional language within the Terms of Use, and likely will state how the social media site itself may use the content, and how the social media site may allow others to use the content.

  • By social media site: The license granted by the user to the social media site typically allows the site to display, reproduce, modify, or distribute the content. Some sites expressly limit this use of the content for the purposes of operation, improvement of new services, and/or development of new services. Modification, such as recoding or reformatting, is also typically allowed to make sure that the content conforms with the service being offered.
  • By third parties: Once you have uploaded content onto a social media site, other users of the website may see that content and may be permitted to use the content within the website, all subject to any privacy or use setting you may have attached to your account. In addition, several sites rely on advertising revenue and will make the use of their site conditional on an agreement to allow third party companies to place their advertisements on or in conjunction with user uploaded content. When it comes to third parties actually being able to use your content, social media sites vary in their provisions. Facebook, for example, does not giver user content to third parties without the user’s consent. Twitter’s license, however, allows them to make the content you have submitted available to other companies, organizations, or individuals that partner with Twitter for the syndication, broadcast, distribution, or publication of the content on other media and services, without first obtaining your consent. On Tumblr, the license granted allows Tumblr to make all publicly-posted material available to third parties selected by Tumblr for the purpose of analyzing and/or distributing the content on other media or services.

4. Liability for Copyright Infringement

Another common provision affecting a user’s copyrighted work is the limitation of liability for social media sites when it is discovered that a user’s protected work is being used on the site, by a third party, and without the user’s permission. In this situation the user may not have any recourse against the website for their role in allowing an opportunity for infringement. This is because many of these social media sites fall within the definition of “service provider” under the Digital Millennium Copyright Act. Under the DMCA, if these sites comply with certain take down provisions upon being notified of an infringing use, they may be able to escape secondary liability.

Because of this Pinterest, Twitter, Facebook, and Tumblr’s Terms of Use all contain a procedure for notifying the company of copyright infringement, while Instagram (recently purchased by Facebook) provides a similar procedure elsewhere on their website. In addition, to make clear that their liability is limited, many social media sites state in all caps that, to the extent permitted by law, their company (and all directors, officers, shareholders, employees, representatives, agents, consultants, suppliers, and distributors) are not to be held liable for any damages related to the unauthorized access, use, or alteration of user content. Twitter, example, states that in any event the total liability they can be held accountable for is $100 or the amount a user has paid to Twitter (if any) in the 6 months prior to bringing a claim. In all 5 social media sites we considered, the site does not take responsibility for the content posted by users but does reserves the right to remove content they believe is unlawful or objectionable.

Our review above covers some common clauses you are likely to see in Terms of Use for existing and upcoming social media sites. While there are a lot of commonalities in the Terms of Use for most social media sites, each website could potentially have their own unique provisions related to user content. For this reason it is important that users concerned with how their own content will be protected or exploited, read all the applicable terms of use prior to submitting their content.

The Terms of Use provided should make clear what content you retain control over, and any license you may be granting as a condition of your use of the site. If you have read the Terms of Use and wish to accept them, you may be able to limit the exposure of your content through configuration of your settings within the program or application. An individual concerned with their content being used without their permission by other users may want to adjust their settings to private, or otherwise limit the number of individuals who can access their content. In addition, some sites allow users to opt out of sharing with third parties such as advertisers.

 

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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

Point of View: Medicines, Treaties and Intellectual Property

As usual, this week brought a variety of points of view and types of news in the world of intellectual property. Two publications show this contrast vividly.

One was the 2010 U.S. Intellectual Property Enforcement Coordinator (IPEC) Annual Report on Intellectual Property Enforcement (a bit of a redundant name).   This Report chronicles the Department’s efforts in the past year to strengthen intellectual property enforcement in order to create jobs, protect American business domestically and internationally, and protect consumers.  One of the ways IPEC is doing this is through various actions to combat the sale of counterfeit drugs, including drugs that either are ineffective or are actually harmful to patients.

The other was a new book from MIT Press, Access to Knowledge in the Age of Intellectual Property, edited by Gaëlle Krikorian and Amy Kapczynski.  Krikorian and Kapczynski provide a collection of essays that chronicles the history of thinking of the Access to Knowledge social movement, which includes activists working to open up intellectual property with regard to drug patents in the developing world, indigenous farmers anxious to preserve access to traditional seeds and plants, students involved with the free culture and open access movements, and many others .

Two essays on drug patents and the developing world caught my attention.  The first, “The Revised Drug Strategy: Access to Essential Medicines, Intellectual Property, and the World Health Organization,” chronicles the process and struggle of developing the Model Lists of Essential Medicines through the World Health Organization.  A place on the list allows a developing country to issue a compulsory license for that drug.    The second, Sangeeta Shashikant’s essay on “The Doha Declaration on TRIPS and Public Health,” points out the problems of “evergreening” to extend the life of patents and concerns about supplies of generic medicine in developing countries since treaty obligations required India to start issuing pharmaceutical patents in 2005.

Although no one wants the sale of medicines that are ineffective and harmful—the IPEC report mentions the sale of a counterfeit medicine that contained an ingredient used to make sheetrock—here are two very different ways of describing the problem and its solution.

You Caught My Eye: Recent Intellectual Property News

Here are some intellectual property issues and news items that have caught my eye recently and that may be of interest to the university community:

TIGAR—Accessible Print Formats Internationally

Coincidentally, just before the Digital Media Collective program on Rights for the Disabled and Copyright (Thompson Library 150 A&B, Nov. 9, 11:00 a.m.) comes news from the World Intellectual Property Organization of an initiative that the organization correctly calls “unprecedented.” TIGAR, the trusted intermediary global accessible resources project, will help publishers make book titles available to the visually impaired and print disabled.  The intermediaries will convert the books to accessible formats and distribute them to each other and to specialized libraries.  TIGAR will also provide tools for searching for books in these formats.

Since only a small percentage of the books published in the world are available in accessible formats, this is a great step forward internationally.

Dancing Baby Continues

In 20007, Stephanie Lenz put up a video on YouTube and received a takedown notice.  University Music Group claimed that the 30-second video, which showed her baby son dancing with Prince’s “Let’s Go Crazy” playing in the background, violated copyright law.  Claiming fair use, Lenz filed suit with the help of the Electronic Frontier Foundation (EFF).  She is asking for a declaratory judgment that she has not violated copyright, and also for an injunction and damages.  Most recently, both sides have filed motions for summary judgment.

The EFF has a web page charting the progress of the suit.  Lenz v. Universal is of interest to anyone who is dealing with fair use and social media.

Unexpected Brief from the DOJ in Human Gene Patents Appeal

This spring, in a surprising decision, a federal court ruled that patents on the BRCA1 and BRCA2 genes were illegal.  Mutations of these two genes are responsible for most hereditary breast and ovarian cancers, and the company that holds these patents has had a monopoly on the diagnostic tests on those genes.

Now the case is being heard on appeal, and the Department of Justice has weighed in with an amicus brief, arguing that it takes more to patent a gene than identifying it—“A product of nature is not transformed into a human-made invention merely by isolating it.”  Although the Department of Justice does not govern the actions of the U.S. Patent and Trademark Office and the brief does not argue against all gene patents, many wonder if it  signals a change in governmental attitudes on the subject.

Pre-1972 Sound Recordings

In the U.S. sound recordings made before 1972 are not governed by federal copyright law, but instead are subject to a variety of state laws that the U.S. Copyright Office calls “a patchwork.”  Under the current law, this situation is not due to be rectified until 2067.  Digitization of these recordings is difficult, because clearing rights is extremely complicated.  Now the U.S. Copyright Office is asking for comments on “the desirability and means of bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.”