Column: Watts legal?

Editor’s note: Daniel Watts is an alumnus of the UC Davis School of Law. Submit your legal conundrums, and he’ll be answering every week.

Question: If I post a disclaimer on Facebook, will it stop Facebook from profiting off my information and give me back ownership of my posts and photos? I want to stop Facebook from using my photos and status updates without my permission.
— Cathy N., Davis, Calif.

Answer: First of all, let’s clear up a myth propagated a couple years ago by faux lawyers at the Consumerist blog.

Facebook doesn’t own your posts, messages or photos. They never did, never claimed they did and still don’t.

They do, however, own a worldwide license to distribute your content without your permission. This license is non-exclusive, though, which means you can still license your photos to somebody else who can also distribute them.

How did Facebook get this right?

You gave it to Facebook when you clicked “yes” on a contract you probably didn’t read: Facebook’s Terms of Service.

This isn’t anything unusual. You agreed to the same thing when you signed up for Gmail — including your campus email. For that matter, you also agreed that if you want to sue Google over the Gmail terms of service, you must sue them in Santa Clara County. Yahoo, Funny or Die and every other internet company have similar policies. You grant Google and Yahoo a license to store your email on their servers and redistribute it to you in different formats. You give Funny or Die the right to post your videos for others to see.

Even Wikipedia — a nonprofit — makes you agree to license any edits you make to articles or photos you upload. And though Wikipedia does not profit off of your contributions, its mandatory Creative Commons license allows others to use your Wikipedia edits or photos for profit.

Why are these licenses necessary? Because you own what you create. Under the U.S. Copyright Act, you own an automatic copyright in every creative work you set in a fixed medium. This includes email, tweets and lame Gangnam Style parody videos.

Like J.K. Rowling and Woody Allen, you own a copyright in your words and films. Just because your tweets are illiterate and your films boring doesn’t mean you lack a copyright in them.

Facebook and Google need your permission to store your content on their servers, so they get you to grant them that right when you sign up.

But to answer your original question, the only way to stop Facebook or Google from using your content without your permission is to never use Facebook or Google in the first place. Despite what your friends have said as they post that legalese hoax that’s been making the rounds this past week, you cannot override a binding contract by posting a “disclaimer” on your social media page. It has no legal effect. You still own your posts, but you can’t stop Facebook from using them.

However, you can stop your friends from using them.

Your photos and written words are your own copyrighted property. If someone takes your photo and posts it in their own profile, or steals your YouTube video and posts it on their own account, you can sue them for copyright infringement.

Seriously.

Anything set in a fixed medium, whether scribbled on a napkin or chiseled in granite, becomes copyrighted immediately upon its creation. If someone reproduced your tweet verbatim, you can sue the thief for $150,000 in statutory minimum damages if you register the tweet with the U.S. Copyright Office within 90 days of the tweet’s publication. This process costs about $35 and takes less than 30 minutes. Even if you don’t register the tweet, you can still sue the thief for “actual” damages, but those are probably negligible unless you’ve found some way to profit off your Twitter gibberish.

Copyright law is draconian, as any victim of a Recording Industry Association of America (RIAA) lawsuit knows. But the RIAA isn’t the only one who benefits; it applies with equal force to Taylor Swift songs and to tweets. You already gave a license to Facebook, but you can stop everyone else from copying your stuff.

Daniel is a lawyer and an alum of UC Davis School of Law. Got a legal question? Email danielwatts@gmail.com or tweet @GovernorWatts.

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