RustyBug
Registered: Feb 02, 2009
Total Posts: 9572
Country: United States
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Jim,
Yes, I did not fully extrapolate (my opinion) @ Facebook's "Statement of Rights and Responsibilities" ... only 2.4's relevance to the OP's HoB scenario.
+1 @ not an attorney, but the main thing that Facebook is doing is extracting themselves from liabilities against that which they cannot prevent and garnering permission for usage. There is a certain aspect that I think is pertinent for everyone to understand.
You post online, you run the risk of someone stealing your images and there isn't a darn thing anyone can do to prevent such theft.
But just because Facebook includes a "Statement of Rights and Responsibilities" that strives to absolve themselves from any liability regarding such theft of images, it does not absolve those who take such images from the accountability to the law. For example, even if a person had a properly, timely registered image and posted it on Facebook and someone took that image, gave photo credit to associate the image to the copyright owner ... the party that took the image via Facebook would not be in violation of the copyright act, since you gave permission for them to do so via the AGREEMENT you entered into with Facebook. This would be different than the DMCA aspect of 17 USC 1202 since there had not been a copyright removal action involved as in the scenario presented by the OP with HoB.
Facebook's "Statement of Rights and Responsibilities" does not negate the offenders from complying with the law. Facebook's "Statement of Rights and Responsibilities" primarily serves TWO purposes.
1) CYA Facebook by giving them essentially unlimited rights to use (or even sell) those images as the deem (as long as they comply with DMCA by associating the images to the copyright owner)
2) Alert others that they are engaging in "risky" behavior when they post images online
Facebook can't control the actions of the world anymore than SmugMug can keep people from taking screen shots to capture images, even if the "right click" is disabled. Just because Facebook has a policy that replicates aspects of the law does not negate the validity of the law.
HOWEVER ... it should be noted: There is a vast legal difference between a "policy" or "Statement of Rights and Responsibilities" and an "agreement". The very top of the page reads:
"This agreement was written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls. Please note that Section 17 contains certain changes to the general terms for users outside the United States."
Jim, you made reference specifically to 2.4 ... it is 2.1 that (imo) is most problematic. 2.4 merely explains that in order for 2.1 to be done in compliance with DMCA, an association to you must be made by those using your images.
In reading item 1) below of the AGREEMENT:
People who submit to this AGREEMENT are extending transferable rights to Facebook and others (which is why you'll never see me post an image on Facebook). It is this AGREEMENT that is going to "cook your goose" when it comes to someone using your images that they took from Facebook. I'd be rather certain that others (Flickr, Google, YaHoo, etc.) have similar agreements once you read their "fine print".
As long as when they use the taken images, they associate it to you ... then they are not in violation of your copyrights because you AGREED to allow them royalty free permission to do so via your AGREEMENT with Facebook. In that regard, no violation of the law has occurred. If however, they remove your copyright information (i.e. associates to you), then they ARE in violation of DMCA. The AGREEMENT entered into with Facebook does NOT indicate you are giving permission for people to remove your copyright information. As such, usage of copyrighted (registered/unregistered) materials and DMCA (copyright information) removal issues are separate (highly related) aspects of the law.
Imo, the AGREEMENT that people enter into with Facebook extends "carte blance" usage rights. It does NOT negate copyright information removal violations per DMCA.
My whole gig about STOLEN ... is taken WITHOUT your permission.
If you submitted to Facebook's AGREEMENT ... you ARE giving permission ... it is in BLACK & WHITE.
However, that still does not give the person/entity that acquires (notice I did not say STOLEN this time, subsequent to the AGREEMENT extending permission, they are only acquired) your images from Facebook the right to remove your copyright information, or to use it as "their own", or to distribute it to others without associating it to you (i.e. photo credit/copyright marked/etc.). The various aspects of copyright law, DMCA statutes and the AGREEMENT you enter into with Facebook interrelate with each other. Facebook's AGREEMENT (imo) says that you are giving permission for others to use your images ... as long as they retain association to you as the copyright owner (in accordance with DMCA).
The clause about "subject to your privacy and application settings" could have additional merit if you chose a non-public ... but I'm not going to venture into trying to split hairs down that path. Simply that when you enter into an AGREEMENT ... you have AGREED to the terms of that AGREEMENT. In the case of Facebook, you are giving PERMISSION for Facebook and others to use your work for the duration of your images being posted on Facebook (more legal @ lingering backup copies) and/or you having an account with Facebook.
From the Facebook AGREEMENT
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us 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.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
3. When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Use Policy and Platform Page.)
4. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).
Post it online in sharing websites and it is highly likely that you have given permission via the agreement you entered into ... just depends on the terms of the agreement ... terms matter.
HTH
 ... I need one after that. 
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