Finkel v. Facebook

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Last updated on July 26th, 2010

Ownership v. Immunity

In the opposition to the dismissal motion, Finkel argues that Facebook more or less waives its right to statutory immunity under section 230 of the CDA by explicitly claiming ownership of all content posted on the site. I find this really interesting. Is there legal merit to the claim that Facebook can't have its cake and eat it, too?

Ownershp v. Immunity

This is an interesting issue, Max — I was just talking about this with my colleagues here today.  Our sense is that assertion of copyright ownership is a separate thing from "creation or development" in Section 230, but the plaintiff appears to be right that other cases haven't directly addressed this issue.  There are cases saying that an interactive computer service doesn't lose section 230 immunity even if it pays someone to create content (as long as the person is an independent contractor, not employee) -- the case that comes to mind is Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).

Also, I think the plaintiff quotes selectively from Facebook's terms of use and misrepresents what the quoted language actually means. First off, the quoted passage says that site content is the "proprietary property of the Company, its users, or licensors with all rights reserved."  This plainly suggests that users own some of the content.  Plus, if you look closer at the rest of the terms, you'll see that lots of material expressly dealing with user content, including the grant of a license to Facebook to make various uses of user content.  If Facebook already owned the content, it wouldn't need a license.

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