Are you a Facebook criminal?

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From file sharing networks to social networks, copyright organisations are going after naive users. Could you be the lawyers' next target?

Your mobile phone is always with you, and uploading photos of a party to Facebook is effortless. It's only later that some people face the nasty shock of legal notices, fines, and expensive lawyers' fees. People in countries around the world are waking up to a whole new side effect of using Facebook, Twitter, YouTube and other networks. So far, there has not been any reason to think about the legal and financial consequences of posting things online. On any typical Facebook profile, there will be party photos, YouTube videos, or text quoted from the web. These can earn a user warning fines of up to €15,000 says German media rights lawyer Christian Solmecke. He agrees that the feared wave of warnings has not really hit yet, something even other legal experts confirm.

However, the danger - and this is where all specialist lawyers agree - is that the industry of lawyers and copyright organisations which has grown powerful by winning cases against file sharers, will now extend their efforts to social networks. Users of Facebook and the like are also spreading copyright-protected content without agreement of the copyright holder - even if they don't know it. If your profile is visible to everyone on the Web, it could become an expensive liability, as millions of people might be able to see a music video, photo or song you post.

Comic heroes and their dedicated fans

One ongoing trend is that of Facebook users replacing their profile pictures with those of comic heroes, thus provoking the outbreak of copyright warnings. So far, nothing has happened. Lawyer Guido Kluck of K&W Legal confirms that copyright holders have been very tolerant of such behaviour till now. Still, it is not technically permitted for users to copy pictures from anyone else's Web sites to decorate their own profiles. Publishers like DC Comics and Marvel own the copyright for these images, and only they can decide about allowing their use.

Even photos of real people can be expensive. Lawyer Hagen Hild tells us of a case in which a female Facebook user used the photo of a model. On being contacted, she showed some sense and removed the picture. You can publish images of celebrities if you are reporting about a current event - but this sort of reporting is not usually done via social networks. A post or a comment does not fulfil the criteria.

Posting responsibly

Actual warnings that Facebook users have received usually involve posts with embarrassing photos of others which are not removed even on request. This could happen to anyone, anytime: you might take photos of your colleagues drinking at a party. If the people in the photo object, they have the right to ask you to take down the photos. Ideally, you should not post any pictures without the express approval of the subjects. “Just taking photos at a party does not give you the right to publish them later,” says Christian Solmecke.

However, if the party photographer informs all guests in advance that he will post their pictures later on Facebook and nobody protests, then legal experts say that it is implicit consent. In case of any doubt, the person who is posting the photos on to the Web should be able to prove that all the photographed people agreed to be published and that he has the rights to these pictures.

Stricter data protection

The same goes for other personal data, including email addresses and telephone numbers. You can allow Facebook to access these details from your smartphone or email account, in order to help it find you other acquaintances for you. This is allowed in most countries including the USA, but some countries such as Germany have stricter data protection laws under which this is illegal.

A comparatively newer risk is that of sharing Web videos, which are usually in the form of embedded YouTube clips. YouTube's terms of use allow videos to be embedded, appearing exactly like you have embedded them directly on your own Web site or blog. But if the content of the videos itself is illegal, it could be trouble. Anyone who posts a link to a copyright protected video is considered to have infringed the law and is liable as an abettor.

The legal position here is not very user friendly, since the law considers it unimportant whether you yourself have uploaded the videos on YouTube. Additionally, it might not matter in court whether you as a user recognised that the video violated copyrights - something that is not often possible or reasonable. In case of doubt, since the copyright holders can initiate an injunction, ask for compensation, and even claim damages - which could amount to a lot of money.

User tracking on Facebook

Before sending a warning to your postal address, the copyright holder has to find the user. The ingenious methods used to spy on file sharing networks and identify IP addresses of file sharers do not work on Facebook. Instead, they have to turn directly to the company. In many countries, Facebook can be required to hand over the names and addresses of anonymous users in case they have broken the law.

But while rightsholders have been quick to clamp down on suspected pirates in the past, they are less aggressive when it comes to networks like Facebook. They are usually satisfied if Facebook deletes the data in question, and do not press the company to reveal the identity of the user. Facebook has already received many such takedown notices, but did not want to reveal the name of the requesting party to us.

If you post a video of yourself singing or dancing along to a song, or use it as background music for a video clip, you could be confronted with licence claims. If you want to cover a song or use it in any other way, you should ideally obtain permission from the rightsholder as well as the relevant broadcast licensing bodies.

Apart from music and videos in posts on Facebook profiles, you will also find extracts from books and articles, or witty comments from Web sites or speeches. Even these can turn out to be extremely expensive, as a few cases from the past prove. Anneliese Kühn, heiress of the artist Karl Valentin, is one of a number of people who have been sending warnings out for years now. Lawyers set the value of quotes from Valentin (such as the well-known “A stranger is only a stranger in a strange land”) at €10,000. This value, a part of every such warning, depends on the commercial interest of the claimant. But the actual costs according to a judicial process are much lower. You are safe using quotes if the quoted person has been dead for 70 years or more - then his copyright expires. Protected quotes or text passages can generally be used only if you characterise them as quotes, cite the source and put in a context—like an academic work.

Small businesses are vulnerable

If you are allowed to share content on Facebook only to a limited extent, then can you sell something? If you have bought yourself a new digital camera and want to offer your old one in your friends circle, you are already operating in grey area. As a private citizen you can certainly sell something if you want. But as soon as you offer several units of the same object or many similar objects at once, then you are legally a businessman.

In this case - especially when dealing with strangers as customers - you have to give the same information as other web shops: complete contact details, correct instructions about returns and guarantees, information about long-distance shipping, and assurances of data protection as well as the right prices and delivery times. Warning letters between competing online shops are quite regular but experts believe that this will increase on Facebook also. However, this concerns mostly commercial vendors.

It is uncertain at the moment if a wave of warning letters will start hitting private users of Facebook, Google+ and other similar services. Christian Solmecke believes that it is only a matter of time before the legal industry makes social networks its next hunting ground.

It took roughly five years from the launch of Napster in 1999 for opportunists to start hunting down file sharers, a practice which really took of around 2004. Today, thousands of cases are being filed in order to flood the courts and force financial settlements. With such a precedent, Web users should start taking precautions right now.

CHIP

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“A comparatively newer risk is that of sharing Web videos, which are usually in the form of embedded YouTube clips.”

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(This article was published in the Business Line print edition dated February 13, 2012)