Our private lives, protected by terms of use?
Posted 12/01/2005 12:26:00 PM |
The issue of the so-called Drunk idiots is the cause for today's post. Using photographic evidence gathered from Facebook, the Hurricane (the student newspaper) exposed 4 students involved in a "lake swimming" issue. Compared to Ms. Moody, these students were caught in-the-act breaking a particularly notorious law; I think we can agree an incident like this is of a slightly different class of simply being caught drinking a beer on camera.
The Facebook responded to this incident, citing a violation of its Terms of Use, and requesting the immediate withdrawl of the photographs. The story is a must-read, and is available here (SPLC). I've excerpted liberally.
The editor of The Miami Hurricane said she received an angry letter from a lawyer at Facebook.com after the student newspaper ran a front-page story featuring photos and text gathered from the social networking Web site. ...
The Nov. 13 letter, written by Facebook lawyer Chris Kelly, said The Hurricane had no right to publish the material and ordered the student newspaper to immediately remove the article from its Web site. Hurricane editors have not complied with the request. ...
Patricia Mazzei, Hurricane editor in chief, said the paper ran a follow-up article in its next issue clarifying that Facebook had nothing to do with the story.
Mazzei said the staff considered the pros and cons of running potentially copyrighted material but decided "the story’s importance outweighed any other risks."
"We thought it was newsworthy," Mazzei said. "It was a matter of public safety – we’ve had two students drown [in the campus lake] before."
Kelly said he disagrees.
"The mere assertion that something is newsworthy does not invalidate the copyright," he said. ...
Kelly said he is confident his client would be successful in a lawsuit against The Hurricane, citing Facebook’s copyright interest in the overall look and feel of their Web site. But he said filing a claim is not necessarily the route Facebook plans on taking.
In addition, Kelly said The Hurricane’s use of the photos violated the copyright held by the person who took the photos.
Kelly said The Hurricane’s use of the Facebook member’s photos also constituted a violation of the Web site’s terms of service that all users agree to when they become a member of the site.
Those terms state that content from Facebook "may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means" without Facebook’s prior written permission.
"We’re claiming that the person who downloaded those photos [used in the article] violated those terms of service," Kelly said. ...
Mark Goodman, executive director of the Student Press Law Center, said it is doubtful Facebook’s claims would hold up in court.
"I think it unlikely that a court would find the use of an image on a Web site that is accessible to millions of people, in a story about the controversial activity depicted on that Web page, an infringement of Facebook’s copyright," Goodman said. "This seems like a pretty clear ‘fair use’ to me."
Sam Terilli, a journalism professor, said the paper had a legal and a journalistic right to use the photos in its story.
"You had a matter that was newsworthy, plain and simple," Terilli told The Herald. "If people are posting things on the Internet and thinking that’s private, they’re wrong."
A link to Kelly's leter of complaint to the Miami Hurricane is here (pdf).
This brings us to a very important question, one that will be challenged more frequently as time passes; do terms of service actually protect us? The notion the Facebook puts forward is that we are safe because it so strictly limits what people can do with the content posted in the system. Facebook's terms are quite exclusionary - they even prohibit you from downloading anything from the site (which always cracks me up, because viewing a web site requires downloading content.
However, as communities grow, the notion that a community is "protected" by a terms of service grows unstable and questionable. That participants agree to a Terms of Service do not mean they will abide by it, and as services grow more essential, the needs for more free use grow. What is contained in the service is no longer private; Prof. Tirelli correctly makes the assertion that when services grow to a certain size, users can no longer a expect a sense of privacy. What we share becomes public in a sense; and certainly public under fair use.
It will be fascinating to see how this progresses, because it leads me to believe that the notion that privacy can balance on terms of use will ultimately prove untenable.
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3 Comments: (Post a Comment)
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At December 01, 2005 5:22 PM,
said...
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Fred,
I wonder what the courts think about this:
Does downloading (viewing) or otherwise recording a photo -- a photo not 'watermarked' or otherwise copyrighted by Facebook -- infringe upon rights to that information as property?
What's the answer? -
At December 10, 2005 3:46 PM,
said...
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I'm not sure why you even phrase the question at the top of your post in the way you do. Nobody thinks Terms of Service agreements, proposed by the website and agreed to by the user, are in any way meant to protect "us". Terms of Service exist solely as a means to protect the website's copyrighted information, and the agreement you excerpted on your blog gives no hint of protection for anyone not who is not Facebook.
Here, it appears as if the folks who downloaded the photos did strictly violate the ToS, but I agree with the lawyer with the Student Press Law Center who says this use would constitute fair use. That seems pretty clear. -
At February 16, 2007 4:49 AM,
Velcro Warrior said...
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I'm glad to see that Facebook is concerned with the privacy of their users. I don't care that some individual foolishly uploaded the pictures to a location that's potentially viewable by thousands of individuals. They took the photo. They hold the copyright.
None of the students were even pictured swimming in the lake, in all the photos, they were simply wet. Granted the title of the group implied they swam in it.
Looking at the print edition, it almost seems more like slander, rather than "newsworthy" material, as they so claim.
What a bunch of bull shit.
