January 23, 2010
Facebook User Agreement Upheld in Copyright Infringement Lawsuit Over Third Party App--Miller v. Facebook
By Eric Goldman
Miller makes the Adobe Flash videogame "Boomshine." He alleges that defendant Yeo published a Facebook app, ChainRxn, that violates Miller's "look and feel" copyright in Boomshine. In addition to suing Yeo, Miller sued Facebook for its role in providing access to the app. See Wendy Davis' initial story on the lawsuit from October. Facebook defended on jurisdictional grounds, asserting that Facebook's user agreement requires that the lawsuit should be heard in California, not Miller's preferred venue of Georgia.
The court grants the transfer request. Miller had a Facebook account that he used to promote his games, and he consented to the Facebook user agreement--and its mandatory venue clause--when he created his account. Miller argued that Facebook's user agreement was vague, a contract of adhesion, and inapplicable to Miller's copyright complaint. The court efficiently rejects these attacks, noting its concerns about Facebook having 350 million potentially litigious users:
striking the forum selection clause could wreak havoc on the entire social-networking internet industry. If this court were to determine that the forum selection clause contained in Facebook's TOU was unenforceable, the company could face litigation in every state in this country and in nations around the globe which would have potential adverse consequences for the users of Facebook's social-networking site and for other internet companies.
It's hard to argue with this, but the Court's next move is trickier. It says that Miller's copyright infringement allegations are covered by the forum selection clause, which purports to govern "any dispute about or involving the Web site and/or the Service." A complaint about an infringing app clearly satisfies this broad language, but consider the implications. Miller, like 350 million other people, has a Facebook account. He's complaining about activity that isn't related to his use of his account; rather, he's complaining about wholly unrelated activity. Read literally, this court seems to be saying that all 350M Facebook users are required to sue Facebook in Facebook's home court for any claim they may have that relates to Facebook.com.
Just like this sweeping outcome has not occurred for other Internet companies like eBay, I don't expect that Facebook will be so lucky either. However, it would have been nice if the court had been more careful explaining why a copyright infringement lawsuit brought by a copyright owner who happens to be a Facebook member is governed by the user agreement.
If the case gets that far, I wonder if Facebook can claim the 512 safe harbor for hosting a user-supplied allegedly infringing app. In general, I think third party apps fits the 512 paradigm neatly--either 512(c) if Facebook hosts the app or 512(d) if Facebook links to the app. However, Miller alleged that he sent a C&D notice to Facebook and Facebook ignored it, which putatively disqualifies Facebook from 512(c) or 512(d) coverage if the C&D satisfied the 512(c)(3) requirements. Even if Facebook can't claim 512 protection, Miller faces a potential uphill battle proving his allegations that the ChainRxn game infringes Boomshine's "look and feel," which are tricky to enforce, especially in the gaming context.
I wouldn't read too much into this case, but it does seem partially responsive to the legions of unhappy Facebook users who believe that Facebook's user agreement should be struck down for one reason or another. It's harder to trump properly formed online user agreements than most people wish, and this case is a small example of that. Facebook users who are unhappy with Facebook's user agreement can find recourse in a variety of ways, but assuming the contract is going to fail in court is one of the least preferred methods.
Posted by Eric at January 23, 2010 11:29 AM | Licensing/Contracts
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