January 04, 2013 Articles

Think Twice Before Posting Online

Users concerned with maintaining their rights under copyright law should consider the consequences of posting any materials on social-networking sites.

By Jillian A. Centanni

Popular social-networking sites have become an integral part of many people's daily lives.  According to a recent issue of Crain's New York Business magazine, for the month of June 2012, the three most popular social-networking sites were Facebook, LinkedIn, and Twitter. See NYC's Top Social-Networking Sites, Crain's New York Business. In fact, Facebook overwhelmingly had 9,123,000 unique New York metropolitan visitors, whereas LinkedIn had 3,093,000 visitors, and Twitter had 2,618,000 visitors. Id. Further, Crain's notes that 46 percent of New Yorkers use Facebook and only one in 10 have Twitter accounts. Id.

Since the inception of these social- networking sites (Facebook in 2004; LinkedIn in 2003; and Twitter in 2006), people have anxiously been signing up for accounts and immediately posting materials such as pictures, videos, and text without knowing what the terms are in their user agreements. This brief article will answer the following questions: What laws cover posting materials (i.e., pictures, videos, text) on social-networking sites? Does the online service provider (OSP) face any liability when an account holder posts materials that infringe another's copyrights? Are the user agreements the same for Facebook, LinkedIn, and Twitter? Who owns material once it is posted on a social- networking site? Does an original owner give up any rights by posting material on social- networking sites?

Background
Under 17 U.S.C. § 102, copyright protection is embedded in "original works of authorship" and can be "fixed in any tangible medium of expression." Original works of authorship include various categories, including, but not limited to, books, pictures, music, and movies. Under copyright law, the owner has the right to do and authorize the following: reproduction, preparation of derivative works (works based upon one or more preexisting works, including translations, sound recordings, editorial revisions, annotations, modifications, and any other forms in which works may be recast, transformed, or adapted), distribution of copies, and displaying works publicly. See 17 U.S.C. §§ 101, 102 (2012). If another directly infringes any of the owner's foregoing rights, the direct infringer is susceptible to criminal sanctions and civil liability. 

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) as a mechanism to penalize acts of copyright infringement on the Internet. However, Section 512 of the DMCA, titled the Online Copyright Infringement Liability Limitation Act (OCILLA), creates a conditional safe harbor for online service providers by limiting their liability from infringing acts by their users. OSPs are immune from direct copyright infringement and secondary copyright infringement as long as the OSPs abide by two conditions: 1) adopting and implementing a reasonable policy for accessing and terminating accounts of repeat infringers; and 2) accommodating and not interfering with standard technical measures. As long as an OSP complies with these two provisions, the OSP will not be liable for money damages. However, an OSP may have to follow a court order to remove access to the infringing material. OSPs also may qualify for other safe harbor provisions of the DMCA.  Specifically, subsections 512(a) – (d) of the DMCA, which provide immunity from transmitting, caching, storing, or linking to infringing material posted by OSPs' users. 

Section 512(a)
Section 512(a) of the DMCA is only available to entities that can meet the definition of "service provider" and provides a safe harbor for service providers that play the role of a "conduit" in the communications of others. See Perfect 10 v. CCBill, 488 F.3d 1102, 1116 (9th Cir. 2007).  Specifically, § 512(a) states that a service provider is immune from liability when 1) another initiated or directed the transfer of the material; 2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; 3) the service provider does not select the recipients of the material except as the automatic response to the request of another person; 4) no copy of the material made by the service provider during storage is maintained on the system or accessible to anyone other than the anticipated recipients, and no copy is maintained on the system for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and 5) the material is transmitted without modification of its content. 

Section 512(b)
Section 512(b) of the DMCA deals with caching, which generally can be defined as storing data for future use. Section 512(b) gives immunity to service providers when 1) the material is made available online by another; 2) the material is transmitted from a person other than the service provider to another person at the direction of the other person; and 3) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted from a person other than the service provider to another person at the direction of the other person, request access to the material from someone other than the OSP.

Section 512(c)
Section 512(c) of the DMCA is relevant with respect to a user's activities on social-networking sites such as Facebook, Twitter, and LinkedIn because it relates to the safe-harbor provision for materials posted to a blog at the direction of a user and not the OSP, e.g., online storage. These materials include photographs, film clips, and audio files. In addition to the two above mentioned requirements that the OSP adhere to standard technical measures and remove repeat infringers, § 512(c) requires that the OSP 1) not have actual knowledge that there is infringing content on its servers, or know any surrounding facts that would make the infringing use apparent; 2) not receive any financial benefit directly attributable to the infringing activity if the OSP had the ability to control such activity; and 3) act expeditiously to remove or disable access to the infringing material upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement. 

Section 512(d)
Section 512(d) of the DMCA is also relevant to social-networking posts on Facebook, LinkedIn, and Twitter because it provides OSPs with a safe harbor against money damages for infringement from linking or referring users to a location containing infringing material by using a hypertext link. A user who linked to material without knowing that it infringed another's copyright is not liable as long as the user 1) did not have actual knowledge that the material linked to is infringing, or know any surrounding facts that would make the infringement apparent; 2) did not receive any financial benefit directly attributable to the infringing activity if user had the ability to control such activity; and 3) acted expeditiously to remove or disable access to the infringing material (i.e., removing the link) upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement.

Posting Materials on Facebook, Twitter, and LinkedIn
Anecdotal and other evidence indicates that most users do not bother to read the user agreements associated with the social-networking sites Facebook, Twitter, and LinkedIn and just sign up for these free services. A recent article noted that if a person actually read every privacy policy agreement he encountered, it would take approximately 250 hours or 30 workdays.  Mike Masnick, To Read All Of The Privacy Policies You Encounter, You'd Need To Take A Month Off From Work Each Year, Apr. 23, 2012.

Unsurprisingly, the user agreements for Facebook, Twitter, and LinkedIn are virtually identical and thus do not need to be addressed separately. In each, the OSP automatically obtains a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable right to the author's copyrighted materials. This license gives the OSP a right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize the copyrighted materials without the user's permission and without paying the user royalties. The license ends when the user deletes the materials, unless the materials have been shared by others and cannot be deleted.  The important takeaway from these user agreements is that once something (e.g., an article, photograph, or video clip) is posted onto one of these social-networking sites, the material is essentially in the public domain forever. Thus, what Twitter mentions in its Terms of Service is applicable to almost every social-networking site: "What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!"  See Terms of Service, Twitter (Sept. 11, 2012).

Conclusion
Popular social-networking sites like Facebook, Twitter, and LinkedIn protect OSPs from immunity against copyright infringement under section 512 of the DMCA.  Most users of these services do not bother to read the user agreements and upload text, pictures, and videos without considering the legal implications. Users fail to realize that under these user agreements, their posted information essentially becomes part of the public domain forever. Users concerned with maintaining their rights under copyright law should think twice before posting any material on social networking sites.

Keywords: litigation, intellectual property, online copyright, infringement, OSPs, Digital Millennium Copyright Act, Section 512, social-networking sites, public domain

Jillian A. Centanni – January 4, 2013


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