Tuesday, November 27, 2012

Is Facebook Secretly Selling Your Instagrams to the Russians?...and other reasons to freak out for no reason.


Today's post is a bit of a departure for this blog.  I know many of my readers direct their web browsers here for the most up-to-date, insightful commentary on current developments in the world of criminal law, but I've decided to go a different direction today.  This post is instead dedicated to yesterday's magnificent collision of intellectual property law, social media and a good-old-fashion internet hoax.

If you logged onto Facebook yesterday and you have more than 3 or 4 friends, you probably saw the following message pasted onto at least one status bar:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place

 them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.




Of course, cutting and pasting this message onto your Facebook status carries absolutely no legal relevance (except to formally notify all your friends that you are gullible).  It essentially has the same legal effect as posting "I hereby declare that all rules, laws, international conventions and treaties do not apply to me except the ones that I imagine."

It does not require an expensive legal education to spot a hoax like this.  Several "red flags" should jump out at anybody who has ever tried to read the legalese on a mattress tag.

For starters, have you ever read a legal document that used exclamation points?  There is no need to yell when crafting air-tight legal disclaimers.

Next, you might have noticed that there is no such thing as "the Berner Convention".  The Berne Convention is a real thing, but its signatories probably didn't have Facebook in mind when they ratified the treaty in 1886.  The Berne Convention was an agreement by member nations to recognize copyrights granted by all other signatories.  It focused on artistic and literary copyrights, but expressly excluded photographs.  If you have a copyrighted photo of yourself making a duck face in a bathroom mirror and you post it to Facebook, don't expect the Berne Convention to protect your "intellectual property".

By now you're probably wondering what the UCC (which stands for "Uniform Commercial Code") has to do with any of this.  The answer is nothing.  Don't ask my why the author threw it in there.  The UCC is a huge body of model laws governing any sort of commercial transaction you can possibly imagine.  A bunch of lawyers and academic types got together and drafted a set of rules that make a lot of sense when conducting almost any sort of business.  Every jurisdiction in the US has based their commercial codes on the UCC, some more loosely than others.  No jurisdiction in the US has adopted the UCC in its entirety.  And again, it is completely irrelevant to any instagrams of food that you post to Facebook.

This brings us to the Rome Statute.  The Rome Statute established the framework for the International Criminal Court (the "ICC").  The ICC was formed in 1998 to prosecute genocide, war of aggression, and other crimes against humanity.  To date, the ICC has not prosecuted a single case involving misappropriation of instagrams.

And finally, we must address the assertion that Facebook is now an "open capital entity", and that this has some effect on the pictures of cute animals that you have been busy posting.  If there were such a thing as an "open capital entity", we could all imagine what this would mean for Farmville.  Luckily, there isn't.

Stay tuned for more exciting idiocy as it happens.