Two weeks ago there was a major outcry within the Facebook community over revised Terms of Service (ToS) for the hugely popular social networking site. The gist of the protest was an implication in the new ToS that Facebook claimed "ownership" of user-generated content (UGC) and reserved the right to market it for for commercial purposes.
That conclusion would be rather stupid from a business perspective and was quickly disowned by Facebook management. Facebook CEO Zuckerberg: “We Do Not Own User Data” [Mashable]. But because this was a Website policy, changeable unilaterally without user consent, it leaves unanswered the larger question of whether UGC is owned by the person posting the content, the person on who's page/site the content appears or the owner of the service/server. The issue is WAY broader than Facebook. It applies, for instance, to comments posted on newspaper sites, blogs, photos shared on Flickr and the like, and many more applications.
Today I am not trying to answer the question, rather raising some. In the law of traditional commercial relationships -- say banking or telephony -- the "content" one shares with a company is owned by the corporation. Your banking records can be obtained by the government without your consent because they are "owned" by the bank. Only sector-specific privacy laws like Gramm-Leach-Bliley, which are altogether too rare in the United States, limit what the company can go with data arising from its relationship with customers. Hence, Facebook was possibly wrong (although correct from a customer relationship standpoint) to argue that it needed a license from one user to display his/her content on the "Wall" of another user, even when the first person had affirmatively decided to share that UGC by posting it within Facebook.
But what of corporations as employers? Since the law is settled, right or wrong, that a company owns emails generated on its systems, regardless of whether work-related, will that same conclusion hold for social communications sent and received via an enterprise Internet connection? And what of copyright; if a user posts photos to a sharing site, does that act imply either abandonment of their ownership interest or the grant of a "fair use" right to republication in full to the world?
These are interesting, and perhaps important, questions in the developing law of social media. Stay tuned here for more analysis and discussion as we make some tentative predictions of how the law will evolve and whether, in the ultimate analysis, it matters.
I had planned a much longer, analytical post about the relevance and importance of Twitter in the new Web 2.0 world. But this sketch, courtesy of Geek & Poke, was just too hard to resist.
I am a Washington, DC attorney and, as you might be able to surmise, a fan of the late Hunter S. Thompson.
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