I'll call this the "copyright message." Leaving aside the numerous other fascinating legal questions raised by these three short paragraphs, here's the copyright perspective on why this message is totally useless.
United States law (specifically 17 USC 102) inheres a copyright in an "...original work of authorship, fixed in a tangible medium of expression...." Here's the gateway example of what that means: I'm writing this blog post, which for our purposes now we assume to be an original work of authorship. I type it into my computer. I save a draft on my computer's hard drive. When I have finished the post, I put it out into the world by clicking the Publish button. The post goes onto the Blogger servers, where your browser has directed you if you're reading the post now. By saving it on my computer or on a server, I have fixed it in a tangible medium of expression. The law gives me the exclusive right to make copies of this post, which is exactly what a "copyright" is: the right to make copies.
That's all anyone has to do in order to get a copyright in the U.S. Wow, that sure was easy, right? Of course, there are a multitude of other considerations, but basically, it really is that easy. Thus, the second sentence of the second paragraph in the above quote is obviously false, at least in the U.S.
So, to continue this example, I take this post and use it as my status on Facebook. Now what? Well, I still have a copyright in the post, but because I have agreed to Facebook's terms of use, I have changed my rights somewhat. In essence, a copyright, like any other property right, can be thought of as a bundle of sticks. I can sell one of my sticks to one person, give one to another person, sell three of them to yet another person, and hold on to the rest of the bundle. By agreeing to Facebook's terms of use, I gave them (or, more accurately, lent them, because I can take it back) one of my sticks. The term in question says that I have granted to Facebook
a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.What the heck does that mean? Well, a non-exclusive license is a license that I can transfer to more than one person, because one transferee cannot exclude others from using that license (contrast that with an exclusive license, where the holder can exclude others from using that license). "Transferable" means that Facebook can give the license in question to other people, which Facebook does by way of allowing those ads in the right-hand column that are targeted toward a user's professed interests. "Sub-licensable" means that Facebook can give other people limited permission to use the license, which takes place when my privacy settings allow others (all others, if I'm not careful) to view my post on Facebook. "Royalty-free" means that nobody has to pay me for any use of content under the license. "Worldwide" actually means what you think it means. I don't know what the term "shared" means, but if I had to guess, I would guess that if I post this post to my friend's wall, or if my friend reads this post on my status and clicks "share," it has been "shared" it within the meaning of the term.
I used the term "license" a lot just then. A "license" in the context of property is limited permission to use the property. When somebody knocks on your door and you let them in, you have given that person license to use your property. You can revoke your license at any time by telling the person to leave; similarly, Facebook tells me in the term of use that I can revoke my license to Facebook by deleting my IP content or my account.
As we can see, Facebook has reserved a pretty generous stick from my bundle for itself. This may seem nefarious, but what it comes down to is that Facebook wants to stay out of trouble. Facebook wants to avoid a situation where I come to them and accuse them of infringing my copyright because all of a sudden, millions of people are reading this post and that prevents me from making lots of money from it. Facebook wants to be able to point to the term of use and remind me that I have agreed to let Facebook do just what Facebook is doing.
Let's move back to the copyright message. In the first paragraph, it lists several items in which it purports to reserve a copyright. The first of these, "personal details," is probably not copyrightable in the U.S. because it is not an "original work of authorship." I am putting the cart before the horse here, because I have not discussed what constitutes an "original work of authorship;" that discussion will have to come in another post. The rest of the list is copyrightable, and as I have discussed above, the copyright to those items inheres upon their fixation in a tangible medium of expression; no form of notice or registration is required. We note for the sake of completeness that there is no distinction between a person's "professional photos and videos" and any amateur photos and videos; both are copyrighted when they are taken. Finally, to the extent that making copies for commercial use is different from making copies for non-commercial use, in the context of posting content on Facebook, I have given my written permission for Facebook to use my content for commercial use by agreeing to Facebook's term of use.
I will address the Berne Convention only very briefly here. It is a multinational treaty that, in part, provides for the recognition of the copyright laws of signatory countries by all other signatory countries. For example, if I publish a book in the U.S., my copyright in that book is protected in France to the same extent that it is protected in the U.S.: for my life, plus 95 years. If I publish the book simultaneously in several signatory countries, my copyright is protected for the duration of the country with the minimum duration (functionally, my life plus 50 years) If we return to my original example, the fact that I publish this post on the Internet muddies the waters considerably because courts don't agree on how to determine the publication location for purposes of duration when something is published to the World Wide Web. "More on that later," as my esteemable music theory professor Dan Bukvich often said. Anyway, the copyright message's invocation of the Berne Convention is without any effect; and interestingly, the Berne Convention explicitly eliminates any notice requirement for copyright protection, thereby mooting any invocation of the Berne Convention as a requirement for copyright protection.
The second paragraph of the copyright message is total nonsense. Following the parenthetical opening, discussed above, comes what appears to be an express rejection of Facebook's terms of use. This is silly. The statement by itself does nothing because the only way to opt out of Facebook's terms of use is to delete one's account. I suppose another way would be for Facebook to delete the accounts of users who expressly reject its terms of use, but that seems harsh and would probably be bad from a PR standpoint. We can think of it this way: Facebook users are told the terms of use when they sign up. The terms of use include the license discussed above. If you don't like the rules, don't play. This is especially true in the context of the license we're discussing, where a user gives Facebook permission to act while retaining only the power to delete the content to prevent Facebook from acting under the terms of the license. Structurally speaking, there is no way for a user to post content on Facebook and block an attempt by Facebook to use the license. The claim in the final paragraph of the copyright message that failure to post a copyright message tacitly allows Facebook to use content such as photos or status updates is more nonsense. As we have discussed, a Facebook user actively gives Facebook permission to use content posted on Facebook by signing up for an account.
Thus, copying the copyright message to my status doesn't do anything, either to give myself copyrights (because I have them outside of Facebook), or to prevent Facebook from using my intellectual property (because I agreed to let Facebook use my intellectual property when I signed up). Now, to post this on Facebook....
