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The myth of free use of social media content

Mark Sableman July 11, 2013

Many people assume that social media embodies a big twist — a broad exemption from legal liability, for everyone’s benefit. There seems to be a feeling that if you find it on social media, you can use it. But it isn’t so. Beware the myth of freedom to use social media content.

The only twist for social media is that social media companies — Facebook, Twitter, Pinterest, Tumblr, Flickr, LinkedIn, and others — are themselves generally protected, by virtue of their own user agreements and Internet twists in other areas of law, like copyright and content liability.

The Business Law Basics

Remember the old joke that a consultant is someone who says, “Give me your watch and I’ll tell you what time it is”? Social media sites are a little like that. They ask users to post their own content, and as many of them do so, the social media site benefits as a valued destination — a place to find out about all the users and the content they have posted.

Social media sites look like free marketplaces of news, photographs, music, articles, and other content. But that appearance is deceptive. Every bit of content you see on social media sites carries legal baggage with it. Legal rights attach to most every item of content. Legal problems could spring from the unauthorized use of almost any item of content that you find on social media.

Consider your friend’s personal social media page. If it is open for viewing, your friend has almost certainly granted you and other Internet viewers an implied license to read what he or she has posted. But your friend still owns a copyright in his or her writings, and it’s not clear how far the implied license extends. For example, it is OK for you to copy it, send it to others, or otherwise distribute, adapt, or make commercial use of it? Your friend’s writings could libel or invade the privacy of others; in that case, your friend could be legally liable. Your friend’s endorsement of a product might be viewed as false advertising under the Federal Trade Commission’s endorsement rules. Photographs (even of your friend and his or her family members) may be the copyrighted property of others, such as the photographer’s, and your friend’s or others’ use of them could constitute copyright infringement. Put simply, there is no legal exemption from ordinary content laws for social media users.

The Internet Law Twist

There is an Internet law twist for social media, but it is a minor one.

When someone posts content onto a social media site, he or she will, at some point, accept the legal usage terms of the social media site. Those terms — essentially a contractual promise between the user and the site — will require the poster to allow the site the rights to use all posted content. The terms will also require the poster to promise (“represent and warrant”) to the site that he or she has the rights to post everything that he or she posts. And the poster will agree to follow the site’s rules and procedures.

These legal terms — particularly combined special protections for Internet intermediaries under section 230 of the Communications Act or the Digital Millennium Copyright Act — mean that social media sites are relatively safe themselves from liability as to posted content. You, the poster, have given them the rights to display your content. Because you, the poster, are contributing content to the site, under section 230 of the Communications Act, the site will not take on any content-based liabilities. (Under section 230, intermediaries are immune as to materials from third parties, like their customers.) And because of the Digital Millennium Copyright Act, the site can follow the DMCA’s notice-and-takedown procedures, and avoid copyright liability itself, in the event of copyright claims arising from posted material.

Notice: nothing in this twist gives you, the social media user, any particular rights to use any social media content. And the liability exemptions of section 230 of the Communications Act and the Digital Millennium Copyright Act are available only to the social media site operators, not to original posters.

Morel v. Twitter

Consider a case involving photographs posted and found on Twitter. Daniel Morel, a freelance photographer, took photos of the Haitian earthquake, and made them available on Twitter. Agence France-Press (AFP) took the photos off Twitter, and distributed them on its wire service. AFP customers then published the photos.

When Morel complained, AFP asserted that Twitter’s legal terms allowed it to use the photos. But a court ruled to the contrary in Agence France Presse v. Morel on January 14, 2013. Twitter’s legal terms protected Twitter itself, but didn’t alter the basic business law legal rights. Indeed, the Twitter terms pointed out that users retain whatever rights they own to the content they post. Morel, as photographer and copyright owner, retained his rights even after posting his photos.

The court’s decision surprised only those who had bought into the myth that social media content is somehow free for everyone to use. AFP argued that Twitter’s terms of service state, “We encourage and permit broad re-use of Content.” But as the court noted, that statement that didn’t abrogate Morel’s copyright rights. Twitter didn’t, and couldn’t, give AFP or anyone else the right to re-use photos that never belonged to Twitter. 

The Internet twist that protects social media services doesn’t protect social media users. Users of those services should only post content for which they have rights, and only re-use content of others with the copyright owner’s permission.

Update: When Morel’s claims against AFP and another defendant ultimately went to trial in late 2013, the jury found willful copyright infringement and awarded Morel a total of $1.22 million in damages.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at  (314) 552-6103 or msableman@thompsoncoburn.com.