Since we are going on about Facebook this week on the Big Bad Blog, we thought that this would be a good time to share a story from the weekend.

Mr Topp: Hey, you found friends using Facebook Friend Finder!
Karen: No I haven’t.
Mr Topp: Facebook claims you have.
Karen: I guess they’re lying.

Here’s what Facebook says:

So clearly they are claiming that Karen has used the service as part of their advertising. Karen claims otherwise. Is Facebook lying to me?

A second note is that Karen’s profile picture is being used as part of the advertisement. That photo was taken by me — I own the rights to it. Here’s the photo on Flickr:

And here is the license under which it can be used. An excerpt (please note this is not the whole of the license):

You are free to Share — to copy, distribute and transmit the work.

Under the following conditions:
Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
Noncommercial — You may not use this work for commercial purposes.

So when Karen uploaded the photo for her profile picture, she meets the requirements given by Facebook to use the photo as her profile picture on her account:

By uploading a file you certify that you have the right to distribute this picture and that it does not violate the Terms of Service.

Karen has the right to distribute the photo. But she does not have the right to allow others to use the photo for commercial purposes. That is a right that I have reserved, and if somebody wants to use the photo commercially, a separate licensing deal would have to be stuck.

Quite simply, when Facebook is placing this photo in an advertisement they appear to be violating my intellectual property rights.

Facebook’s default opt-in privacy settings means that Karen has never explicitly granted Facebook permission to use her profile pictures commercially. And even if she had, she has not done so explicitly for this photograph. She has certainly never claimed ownership of it — Facebook merely asked if she had the right to distribute it.

There a few important not-so-cut-and-dry questions this raises.

Is Facebook in violation of my rights?

I own the copyright for the photo, and Facebook is not complying with the licensing requirements. They do not credit me in their little ad, though they do link back to Karen’s profile (who I have permitted to use the photo without attribution).

Is linking back to Karen’s profile sufficient to meet the licensing requirements? Clearly not, in my books.

Also, I consider use in an advertisement meant to expand their social network to be commercial use. Is that a valid assumption? Is prompting their users to use their service more a commercial application, or would a court consider it non-commercial, given the context?

I would consider it to be commercial use, but am wise enough to know that my opinion hardly matters.

Finally, is Facebook doing enough to prevent this kind of violation? Where users have opted out of having their photos used, and where users are uploading photos for which they own the rights, there are no concerns. But is Facebook doing enough for this scenario, in which a person has permission to use the photo on Facebook, but does not own the rights themselves.

Facebook takes the position that its users are permitted to sign over the rights of any photos that are uploaded, but merely asks whether the user has the right to redistribute the photo.

With the advent of Creative Commons licensing, however, it is entirely within reason that Facebook’s users DO have the right to load the photo as their Facebook profile photo, but they do NOT have the power to give Facebook (or third party advertisers) the right to use that photo in an advertisement.

Facebook does not ask this question of its users. But they should. Because here, they are violating my intellectual property rights. And it’s probably not just me — it seems likely that they are doing this on a large scale.

The assumption that they made — that holding the right to distribute an image implies holding the right to grant commercial use of that image — is a blatantly false one.

Which brings us to a final question:

What should we be doing about this?