Facebook’s Interminable Copyright Woes

by Koka Tarini Siddhartha

It has been thirteen years since Facebook came into existence and revolutionized our lives. From merely being an online yearbook, to becoming a means of socializing with our friends, it is now a ubiquitous platform for one’s personal life, business ventures and commercialized content and services. Photos, videos and statuses are shared; events are live-streamed. Your Facebook account is your online persona.

However, with the growth and evolution of technology comes an array of copyright issues. In this post, we examine the measures taken by Facebook to protect uploaded content, to determine whether they are sufficient or not.

How does Facebook protect and manage content?

Facebook has faced considerable trouble in the past (and continues to, even in the present, to a certain extent) regarding the content shared and distributed on its website. To avoid any kind of liability, it has a system similar to YouTube’s Content ID system (more on this here) to regulate and screen any infringing content that is uploaded on Facebook.

Until April last year, Facebook only had Audible Magic to prevent unauthorized videos from being posted. Owing to the rampant flagging and reporting of illegal content on its website, Facebook also introduced its own rights management technology, Rights Manager, which allows copyright owners to create and maintain a reference library of content they want monitored and protected.

So, what content can and cannot be posted on Facebook?

Any content that violates another’s intellectual property rights, abusive behaviour including hate speech, violence and harassment, posting nude photos which do not fall within the purview of artistic work or campaigns to raise awareness, and the sale/purchase of destructive devices including bombs, guns and ammunition is prohibited on Facebook. On the other hand, original content and anything falling within the ambit of the fair use doctrine is protected.

Facebook, being an American company, has clearly stated that in the event any dispute, claim or cause of action arises, it will be adjudicated upon as per Californian laws (a simple search on their help centre page should give you more information). A more relevant question, especially in lieu of the digital medium on which it functions, is whether the safe harbor principle under the United States Digital Millennium Copyright Act, 1998 (DMCA) would be applicable to social networking websites such as Facebook.

Wait, what is the safe harbor principle?

One of the more prominent problems on the internet is the liability incurred by internet service providers (ISP) and other intermediaries when third parties upload infringing content. The DMCA was enacted to allow and protect the operability of service providers without them fearing liability.

A series of ‘safe harbors’ were introduced to shield service providers who were in compliance with the DMCA threshold requirements, namely, qualifying as a service provider [providing internet connectivity, transmission and routing (like AT&T, the Indian equivalent being Airtel Broadband or ACT) as well as services such as e-mail and chat rooms], having a termination policy in place for repeat infringers, and incorporating standard technical measures to monitor and remove infringing content.

What often happens when copyright-infringing content is uploaded on a website is, apart from holding the uploader directly responsible, ISPs and intermediary websites are charged for secondary liability as contributors towards the infringing activity, or vicariously, as copyright owners expect these service providers to take all possible measures to prevent such activities from taking place.

‘Safe harbor’ is a nautical metaphor indicating a secure place for ships. Section 512 of the DMCA extends this security to service providers who can claim protection from secondary liability when they have adopted reasonable measures to prevent any infringing activity.

We have previously discussed secondary liability here and here in connection with peer-to-peer file sharing networks such as Napster, Grokster and BitTorrent (amongst others), and how some networks could be liable for copyright infringement (in spite of functioning on decentralized servers) if they actively promote the unlawful distribution of copyrighted work.

All right, but how is this principle relevant to social networking websites?

To a large extent, the safe harbor principle only covers service providers such as ISPs, intermediary websites which allow the exchange of emails or information, and some websites like Amazon (Corbis Corp v. Amazon.com, Inc., 2004) which provide retail and third-party sales services. The question is whether social networking websites like YouTube, Facebook and Twitter are considered as ‘service providers’ under the DMCA in order to avail of protection under the safe harbor principle.

This question could have potentially been resolved in Viacom International Inc., v. YouTube, Inc., when Viacom sued YouTube for hosting copyright-infringing videos (MTV and Comedy Central clips) on its website, but after a series of appeals, the parties settled out of court.

What are some issues Facebook has faced in the recent past?

At present, it is harder to upload infringing content on YouTube than it is on Facebook. With YouTube’s very successful Content ID screening system, content is screened before it can be flagged/reported by a user. Facebook, on the other hand, is facing more trouble each day.

Despite the uncertainty of the applicability of the DMCA to social networking websites, Facebook has introduced the screening tools discussed earlier, has an extensive Terms of Service/End User Licensing Agreement (which must be accepted by every person joining the website), provides for the reporting of any violation of one’s intellectual property rights, and has even laid down the statement of rights, responsibilities and community standards to be followed on its site.

In spite of all these measures, Facebook still struggles to prevent infringing content from being posted. It introduced Marketplace which allowed users to sell and purchase goods between each other but people were selling drugs, animals, weapons and even body parts, all of which was against Facebook’s trade policy.

The biggest problem Facebook faces is through its Facebook Live feature which it advertises and propagates like someone throwing pamphlets in your face when you walk down a street. In trying to compete with other live streaming video providers such as Periscope, Meerkat and YouNow, Facebook continues to struggle with preventing licensed events or content it deems inappropriate from being streamed even a year after having launched this feature.

Last week, two Australian men live-streamed a highly anticipated boxing match on Facebook Live. The match was exclusively licensed to a company, Foxtel, and was a pay-per-view match. Only after the viewership count exceeded 150,000 did Facebook finally block the video. Foxtel lost 6.7 million dollars and has even threatened to sue the two Australians! Foxtel might even sue Facebook for secondary infringement, especially since it is not completely certain whether the DMCA covers social networking websites.

It will be very interesting to keep track of Facebook’s software development to control infringing content posted or streamed on its site. It is also worth keeping an eye out for a landmark ruling by the courts or an amendment to the DMCA which would expressly include social networking websites under the purview of the safe harbor principle.

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