Tag Archives: facebook

Relationship status and the law: it’s complicated

Online statements by mother were critical evidence in paternity case

Watermeier v. Moss, 2009 WL 3486426 (Tenn. Ct. App. October 29, 2009)

Under Tennessee law a man can petition the court to determine that he is the father of a child born to a woman who is married to someone else. (Better make sure there is good security in the courthouse parking lot!)

The court will consider a petition filed more than 12 months after the child’s birth untimely if : (1) the mother was married and living with her husband at the time of conception, (2) the mother and her husband “remained together” through the time the petition was filed, and (3) both the mother and her husband file a sworn statement saying the husband is the father.

Petitioner Watermeier asked the court to determine that he was the father of a child born to Appellee, a woman married to someone else. The woman and her husband opposed the petition. The parties did not dispute that she lived with her husband when the baby was conceived. The woman and her husband also both filed purportedly sworn statements that they were the parents of the child. The troublesome issue was whether the husband and wife had “remained together” through the time the petition was filed.

There was no dispute the two had separate residences. But they were not divorced and they testified they had no intention of getting divorced. In any event, the court found that the two had not “remained together” as provided under Tennessee law.

Among the important pieces of evidence the court relied upon in determining whether the two “remained together” were postings that the mother had made to an online dating service. On different occasions she had listed herself as “separated” and “divorced.” The court took these statements to “demonstrate that this is not an intact marriage and the parties have not ‘remained together.’”

So saying that “it’s complicated” might be an understatement, don’t you think?

Photo courtesy Flickr user debaird under this Creative Commons license.

Do Twitter’s new terms of service forsake third party developers?

Twitter announced its new Terms of Service yesterday. One big issue deals with copyright ownership. This is one of the perennial questions in the law of social media: “who owns the user-created content?” Twitter nods to this issue when it states that “Twitter is allowed to ‘use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute’ your tweets because that’s what we do. However, they are your tweets and they belong to you.”

That’s all well and good. And by not being too grabby, Twitter avoids stirring up a brouhaha like Facebook did earlier this year for a little while when it claimed a very broad license in users’ content. In that situation, some pointed out that Facebook could use your content forever, even after you deleted your account. No doubt Twitter was motivated by an aversion to controversy of this sort when it decided to not claim a perpetual license.

But is Twitter being too cautious? The license it claims in the new terms of service does not specify a duration. That’s user-friendly, because such a license is probably terminable at will by the user. Under cases like Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999), Twitter would no longer have the authority to use, copy, reproduce, etc. the tweets of a user that no longer permitted such use be made. Deleting one’s account would be a good indication that such a license was being revoked. And the user could follow up with an express statement to Twitter that the license no longer exists.

Still all well and good. But let’s look at the “ecosystem” that has been nourished by the Twitter API, and which Twitter bolsters in its new terms of service. (“We encourage and permit broad re-use of Content. The Twitter API exists to enable this.”)

Third party developers can build apps that, among other things, cache users’ Tweets and make them available for mashup, organization, etc. and redisplay. These acts by the third party developer are an exercise of rights of the copyright holder, i.e., the individual Twitter user. The terms of service allow Twitter to sublicense these rights to the third party developer, so there is no problem so long as the individual Twitter user is under the terms of service.

What happens, though, in the situation we were just discussing where the individual user revokes the license to Twitter? These cached copies out there in the possession of third party developers all of a sudden become unauthorized, because Twitter no longer has the sublicensable right to allow the tweets’ copying and redistribution by others.

In such a situation, are third party developers who continue to display the content left blowing in the wind, as infringers of erstwhile Twitter users’ copyright rights?

Notice sign photo courtesy Flickr user szlea under this Creative Commons license.

Court allows Wal-Mart to subpoena Facebook and MySpace

Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D.Colo. April 21, 2009)

A couple of electricians were severely burned when the electrical system they were working on in an Aurora, Colorado Wal-Mart shorted out. They sued Wal-Mart over their injuries. One of the plaintiffs’ wives brought a claim for loss of consortium.

During discovery, Wal-Mart sent subpoenas to Facebook, MySpace and Meetup.com seeking information about the plaintiffs. The plaintiffs filed a motion for protective order which would have prevented the social networking sites from providing the requested information. The plaintiffs claimed that the information should be protected by the physician-patient privilege or, as for the loss of consortium claim, the spousal privilege. The court denied the motion and allowed the subpoenas.

The court held that an earlier protective order entered in the case (to which the parties had agreed) protected the confidentiality of the information. And the plaintiffs had put the purported confidential facts, i.e., the extent of the injuries and the nature of the consortium, at issue by bringing the suit. Moreover, the information sought by the subpoenas was reasonably calculated to lead to the discovery of admissible evidence and was relevant to the issues in the case.

It’s worth noting that the court might have had other reasons to deny the motion for protective order that it did not mention. A privilege of confidentiality is usually destroyed when it is disclosed to a third party. How could information on Facebook or MySpace still be secret? Unless Wal-Mart was only seeking private messages sent either between the spouses or one of the plaintiffs and a doctor, it would seem that most everything these sites would have would not be confidential in the first place.

Facebook message was not witness tampering

Maldonado v. Municipality of Barceloneta, 2009 WL 636016 (D. Puerto Rico March 11, 2009)

Diaz was a defendant in a federal case in which Febus was a witness for the plaintiff. Diaz invited Febus to join a Facebook group, but Febus declined. Later Diaz sent a message through Facebook which, after translation, read as follows:

If you want to see the evidence that exists against the municipality let me know so that you can inform yourself well and please consult with a lawyer your civil responsibilities as far as defamation. Soon we will be filing a lawsuit and you could be included. My only request is that you are objective when mentioning my name.

Febus sought a protective order under the federal witness tampering statute, 18 U.S.C. 1512 which provides, in relevant part, that “[w]hoever knowingly uses intimidation, threatens, or corruptly persuades another …, or attempts to do so, … with [the] intent to … cause or induce any person to … withhold testimony … from an official proceeding[,]” is guilty under the statute.

The court denied the motion for protective order, finding that there was no evidence, neither raised by the plaintiff nor observable through inference, that Diaz intended to intimidate Febus. “This court can only see one threat in his Facebook message: the threat of future litigation. This is an insufficient basis for finding witness tampering.”

Shame on you, Facebook, for overreaching

Facebook, I hereby grant to you an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use the following content: “Go jump in a lake.”

The past few days people have been talking about how scandalous it is that Facebook changed its terms of service to grab up a very broad license in content its users upload. I’m sure that Facebook is counting on this controversy to go wherever it is that memes go to die, to be forgotten just like most controversies-du-semaine. It probably will, but as the sentiment finds itself already on the decline, I’ll comment.

Here’s what the offending section of the Facebook terms of service now says, in relevant part:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

I was pretty peeved when I learned that Facebook had modified its terms to get a broader license. But I was even more peeved when I read founder Mark Zuckerburg’s blog post from yesterday which tried to justify the changes. Of course Facebook must make sure it has the rights it needs in order to “show [users' content and information] to the other people they’ve asked [it] to share it with.” But isn’t the right to share that content inherent in the very “asking”? Why be grabby?

Facebook is being content greedy. It’s commandeering more than it needs to run the service. An example Zuckerburg uses in the post concerns the text of a messages sent between friends. If one user deactivates his or her account, a copy of each message will still exist in the other friend’s inbox. Fine. I see the point. So get a license to store and display a copy of private messages. There’s no problem with that.

The bigger rub comes with photos and video users upload. Why does Facebook need a perpetual license for that? I don’t see any reason, whether from a technological or other practical standpoint, why photos and video could not or should not be deleted — and the license to Facebook terminated — when a user deactivates his or her account. YouTube doesn’t demand a license for content after it has been taken down by a user.

Zuckerburg’s post contains the following interesting statement: “In reality, we wouldn’t share your information in a way you wouldn’t want.” Okay Mark, let’s talk about reality. I don’t want you using information about me, like my name, for commercial purposes. That’s reality. Why then do you demand to have the right to use my name and other information for commercial purposes? Are you suggesting that the terms of service as now written don’t reflect reality? I know they were written by lawyers, but surely your legal counsel can’t be that removed from the real world.

I like Facebook, and through it I have reconnected with old friends and made some new ones. But those connections are what’s important, not the intermediary. I may delete my photos off of there but I’ll probably keep using it, at least for now. But I’ll likely post less content. Shame on you, Facebook, and shame on you Mark Zuckerburg, for putting up a post just filled with platitudes, all while ignoring the fact there’s no reason for your new overreaching. That kind of stunt will invigorate those who want an alternative to Facebook, and will accellerate the process of making Facebook tomorrow’s Friendster.

Greedy photo courtesy Flickr user Gribiche under this Creative Commons license.

MySpace friend request results in criminal charges

People v. Fernino, — N.Y.S.2d —-, 2008 WL 382348 (N.Y.City Crim.Ct. February 13, 2008)

An order of protection, issued by a New York family court, required that defendant Fernino have no contact with a certain Delgrosso. After Fernino added Delgrosso as a “friend” on MySpace, she was charged with contempt of court for allegedly violating the order of protection.

Fernino moved to dismiss the criminal complaint against her, arguing that even if the allegations were true, the purported “contact” through “friending” Degrosso would not support a conviction on the charges. The court denied the motion to dismiss.

Finding that adding Delgrosso as a friend in the social networking context was prohibited “contact,” the court cited to People v. Kochanowski, 186 Misc.2d 441, 442 (App Term, 2nd Dept 2000) and People v. Johnson, 208 A.D.2d 1051 (3rd Dept 1994). In Kochanowski, the appellate court affirmed the harassment conviction of a defendant who participated in building a bogus Web site containing, among other things, alluring pictures of his ex-girlfriend. In Johnson, the court held that the defendant committed aggravated harassment by responding to a personal ad in the victim’s name, causing the person placing the ad to contact the victim.

In this case, the court observed that even though Delgrosso could have simply denied the friend request, it was still a form of contact. It found that the form of communication was no different from the defendant having a third party say to Delgrosso, “Your former friend wants to communicate with you. Are you interested?”

It should also be noted that the court cited approvingly to Wikipedia for a description of MySpace and to Alexa for information about MySpace’s popularity.

Mark Fass of the New York Law Journal has more on this case here. The MyCrimeSpace blog has its take on the case here.  Also found on MyCrimeSpace is this article from last year about a poor chap in the UK who was found to have violated a restraining order for friending his ex-wife on Facebook.