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At some point, you've likely seen someone post some variation of the below from someone you're friends with on Facebook:
I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, messages or posts, both past and future. By this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents. The content of this profile is private and confidential information. The violation of privacy can be punished by law (UCC 1-308- 1 1 308-103 and the Rome Statute).
Facebook is now a public entity. All members must post a note like this. It reserves you the right to sue. If you do not publish a statement at least once it will be tactically allowing the use of your photos, as well as the information contained in the profile status updates. DO NOT SHARE. You MUST copy and paste.
Is it real?!? Should you be concerned?!?
Of course not. It's just a silly thing that someone came up with years ago, and somehow continues to have legs. It seems to be rearing it's ugly head again right now with many people sharing some variation of it.
Most lawyers just shake their heads, and go on with their day. But one lawyer, who might have had some free time on his hands, responded to "legal notice" post as only a lawyer could. In his defense:
My mother e-mailed me about that Facebook thing a while back. Because she's my mother (and because I like doing it) I tore it apart.
Here is a full lawsplainer on why the Facebook Legal/Privacy Notice is complete and utter bullshit.
Lawyer Destroys "Facebook Legal Notice" Meme
Short answer:
No.
Slightly longer answer:
Full answer:
First, let me speak to the statutory references:
- The first statutory reference is to "the code of intellectual property."
- There's no such thing as "the code of intellectual property," at least not in the United States.
- Intellectual property is chiefly in four parts: patents, copyrights, trademarks, and trade secrets. Patents are governed by the Patent Act of 1952, as amended, codified at 35 U.S.C. § 101 et seq. Copyrights are governed by the Copyright Act of 1976, as amended, codified at 17 U.S.C. § 101 et seq. Trademarks are governed both by state law and by the federal Lanham Act, codified at 15 U.S.C. § 1051 et seq. There's no federal law of trade secrets, although most states have implemented the Uniform Trade Secrets Act. (While it's not relevant, North Carolina is one of the few states that hasn't.)
- From what I can gather, this seems to be referring to the French Code de la propriété intellectuelle, as the section numbers seem to match. Why a French law would apply to a U.S. citizen and resident's dealings with a U.S.-based company which stores the data primarily, if not solely, in the U.S. (or at least not in France) is thoroughly unclear to me. But, in any event, because I don't speak French, I have no idea what that law says. But the chances of it being relevant here is as near to nothing as makes no odds.
- Later, the statement mentions "UCC 1 1-308 – 308 1-103."
- Truthfully, this appears to be total nonsense. The best I can come up with is that it appears to be referencing the Uniform Commercial Code ("UCC"). If I ignore what appear to be extraneous "1" at the beginning and the "- 308" in the middle, it looks like it's referencing UCC § 1-308 and § 1-103.
- UCC § 1-308 has to do with express reservation of rights while still performing under a contract or other commercial transaction. Let's look at it this way:
- Suppose you order a pile of wood from a lumber yard. They deliver it to you, but it's shitty quality. They demand payment anyway. You pay them but say, "with all rights reserved" on your check, then sue them for delivering you shitty wood. You haven't waived your right to sue. That's what § 1-308 is about. Bailie Lumber Co. v. Kincaid Carolina Corp., 167 S.E.2d 85, 92-93 (N.C. App. 1969) (applying N.C. Gen. Stat. § 25-1-207 which is identical to UCC § 1-308). And the comments to § 1-308 say as much.
- UCC § 1-103 is even more meaningless. It just says that the Code is to be "liberally construed and applied to promote its underlying purposes."
- In any event, these statutes sure as hell have nothing to do with privacy. There are some state statutes that create a cause of action for invasion of privacy, intrusion upon seclusion, etc. But they're sure not in the Uniform Commercial Code.
- The UCC is a favorite of conspiracy nuts who think it's the supreme law of the world somehow and applies to people interacting with the government. How they get there is not clear to any logical mind. See Meads v. Meads, [2012] 543 A.R. 215 (Can. Alberta Court of Queen's Bench), available at http://canlii.ca/t/fsvjq (this case is the compendium of nutty, sovereign citizen-like arguments, although citations to it in U.S. courts are rare because we basically throw the people out of court without addressing the fact that they're crazy).
- Honestly, I'm not sure what this is getting at here. Reserving a right to sue Facebook? Okay, but Facebook never told you that you didn't have that right.
- The third statutory reference is the "Rome Statute."
- This appears to refer to the Rome Statute of the International Criminal Court.
- While this treaty does set up an international court, it's a court of astonishingly limited jurisdiction. It only can prosecute four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression (which is basically "starting a war"). I'm not sure how any sane person could accuse Facebook of one of those four things.
- And, even if by some miracle Facebook did manage to commit one of the four crimes, it still wouldn't help. The United States has not ratified the Rome Statute. It has steadfastly refused to permit its citizens to be subject to ICC jurisdiction. So it couldn't possibly apply to a U.S. entity.
Now that we've taken apart the statutory references, I'll address the remainder of the claims.
- First, and perhaps most importantly, a user's use of Facebook is subject to Facebook's policies to which you agreed when you opened the account. (You probably didn't agree to quite this version, but I'm sure that the version you did agree to gave Facebook the ability to change the policies from time to time as long as notice was given to you.)
- Don't agree to those policies? Fine; don't use Facebook. It's what's called a "contract of adhesion." While contracts of adhesion are more likely to be interpreted against the drafter, where the language is clear, they're typically enforced, even when that's terrible for the consumer. Consider AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) (enforcing a contract of adhesion that caused the customer to agree to mandatory arbitration to resolve disputes and to waive the right to file or participate in class actions).
- It's also what's called a "click-wrap" agreement. Before using a site, the site makes you click to agree to certain policies. Those are legally binding contracts. Courts have no qualms enforcing "click-wrap" agreements. A.V. v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) (enforcing a "click-wrap" agreement"); State ex rel. U-Haul Co. of W. Va. v. Zakaib, 752 S.E.2d 586, 594-95 (W. Va. 2013) (noting that "click-wrap" agreements and any other electronic contracts are as enforceable as and subject to the same laws as standard paper contracts).
- All those things this statement says Facebook isn't allowed to do, are things you've already given them permission to do when you agreed to the terms of use. While, sure, yeah, you have your copyrights in your stuff, see 17 U.S.C. § 102(a) (copyright automatically attaches at fixation to anything that is fixed and original, and I really don't feel like defining those terms), you've given Facebook a license. Now, they kinda need that license. If you don't give them a license, they can't show what you post to anyone else, even your friends, because it would be copyright infringement. And they need a license for commercial purposes because, well, they're a commercial entity and they want to make money off you.
- So, basically, if you don't like what Facebook does, tough. You already agreed to it. You can't un-agree to it. That's not a thing. You can stop using Facebook, though. That's a thing.
- Second, there's no evidence that Facebook even received notice of this modification or whatever the hell this is (because I sure as hell can't tell), much less agreed to it.
- One key to contract law in the United States is mutual assent. Now, there doesn't actually have to be mutual assent; just the appearance to a reasonable person of mutual assent.
- See, e.g., Lucy v. Zehmer, 84 S.E.2d 516 (Va. 1954) (In my favorite contracts case of all time, Zehmer offers to sell Lucy his farm and puts this in writing on a receipt [a piece of scratch paper]. The next day, Lucy says he wants to execute on that contract and demands Zehmer sell him the farm. Zehmer refused, saying that the whole thing was a joke. The Virginia Supreme Court enforced the contract and forced Zehmer to sell the farm because the facts and circumstances surrounding the written offer would have led a reasonable observer to believe that the offer was genuine.) Thus, the fact that you didn't actually have a clue what you agreed to when you agreed to Facebook's terms and conditions is irrelevant, as it certainly appeared to Facebook, and any other reasonable observer, that by clicking "I Agree," you agreed.
- This statement or modification or whatever has none of the hallmarks of mutual assent or meeting of the minds. Hell, I don't even think that this is reasonably calculated to give Facebook notice that you intend to modify the terms and conditions as to you. Facebook doesn't go around reading posts of random people in which they're not tagged. In fact, if they read this post, they'd be engaging in exactly the behavior that you don't want them to. Seems like a problem to me.
- The statement says that Facebook is "an open capital entity."
- I have no idea what that is. It sound to me a little like a Russian term for a public corporation — открытое акционерное общество (otkrytoye aktsionernoye obshchestvo or open joint-stock company). But all that means is that its owners can sell their shares to anyone they want. In other words, it's publicly-traded.
- So, if that's what they mean, it's true, but thoroughly irrelevant.
Now, hopefully that's enough.
But if it's not, this hoax has been around for over two years to the point that The New York Times actually debunked it (or something basically the same as it) in November 2012. Gawker did a pretty good job, too.
There you have it, the backed-up-with-legal-research reason as to why the "Facebook Legal Notice" Meme is bullshit. Be informed. Don't buy into stuff that is so obviously fake.
Cheers,
Keith |
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