back to article Facebook facepalm: US judge tosses out 'sponsored stories' deal

Facebook's attempt to end litigation brought against it in the US over the launch of its unpopular "sponsored stories" feature has backfired with a judge throwing out the company's settlement offer late last week. The social network had been expected to pay out around $20m and make amendments to sponsored stories, which arrived …

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Silver badge

Non-FB user question

I thought that when you uploaded to FB you granted them an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (inwhole or in part) and distribute?

Given that is the case, why are people getting upset? FB is just using what they gave FB in a manner they agreed to in FB's T&Cs. If they didn't like it, they shouldn't have agreed to the T&Cs.

Simple.

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Re: Non-FB user question

Simple answer: Ts&Cs are not enforceable.

Longer answer: in UK law, as with most other jurisdictions, contracts are only enforceable if a number of conditions are met. These include, from memory:

1. The contract is legal

2. Both (or all) parties to it fully understand everything in it

3. No clause is "unfair"

4. A contract cannot be a one-way-street, ie it cannot be used to enforce a gift or similar.

Of these, 4. is satisfied (the user gets use of the website), 1 is probably ok (there's nothing illegal about broad licences), 3 is questionable in the extreme and 2 is demonstrably false.

No company, anywhere, ever, has managed to enforce a shrink-click license, for exactly this reason.

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Re: Non-FB user question

If 2. is false for FB T&Cs, then 2. is false on every website and every EULA. Ever.

Not saying I disagree with you assessment (and I am probably naive in assuming that people actually read the T&Cs), but the ramifications go way beyond FB.

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Re: Non-FB user question

I don't remember the specifics off by heart but I think the Data Protection Act would trump most of the terms in the contract. At the very least the 'irrevocable' bit would be out the window. If they are using your mush then that's personally identifying information, which (theoretically) has strict controls on usage.

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Anonymous Coward

Re: Non-FB user question

"If 2. is false for FB T&Cs, then 2. is false on every website and every EULA. Ever."

Which has always been the case. This is not news. EULAs are generally not enforcible because in the majority of cases they are linked to sales and sales are not contracts nor are they covered by contract law.

What most EULAs actually boil down to is "if the person selling this objects to how you use it then they'll give you your money back and then stop you from using it". Even this is dubious in the case of software running on a stand-alone computer.

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@Andy S Re: Non-FB user question

You used the word 'contract', which may not be correct for FB terms and conditions.

In UK law, a contract requires some recognised form of payment to take place (or 'consideration' as it is called in law.) Since FB users have not paid or been paid by FB, there is no contract between them. (Having said that, it may be arguable that FB's actions in running the site cost them time and money and so this is the 'consideration'.)

I think the T&Cs can be regarded as license conditions. Whether these license conditions are enforceable is a matter for lawyers.

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Re: @Andy S Non-FB user question

A contract does not have to include payment in the form of financial transfer, it can be the provision of services. In this case, a contract would exist as the user is getting a service...

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Re: Non-FB user question

"What most EULAs actually boil down to is "if the person selling this objects to how you use it then they'll give you your money back and then stop you from using it". Even this is dubious in the case of software running on a stand-alone computer."

Try telling MS

They have now added a clause that you agree that no class action is possible when you agree to their EULA.

And remember they always had the clause that you had purchased a single use only license for say Windows and could not sale it to anyone else.....

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Anonymous Coward

Re: Non-FB user question

The subject of the picture may not be the same as the one who took (and own) the said picture. Even if you own the picture, and grant its rights to FB, that doesn't give FB the rights to use MY face when I, the subject of the picture, didn't agree to anything and isn't even a FB user.

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@localzuk Re: @Andy S Non-FB user question

Yes, as I indicated in parentheses at the end of the second para.

However, I think that both parties have to 'be aware and cognisant' of the form and value of the 'consideration'. You can't expect the 'average user' to be fully aware of the cost of running FB, so they can't be bound by legally binding contractual terms if they act against the T&Cs. Also, if it was a contract in law, either party could sue the other for breach of contract, and I don't think this can happen.

It needs a lawyer or a court to determine all this.

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Anonymous Coward

Re: MS Clause

And since IIRC there are no class action suits in the EU, that is pointless outside the USA, and the laws in the USA are not a strong it seems when it comes to privacy etc...

But I am dubious if this is even enforceable in teh USA

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Anonymous Coward

Re: Non-FB user question

Depends on the laws of the country, if I take a photo on the street, 99% of the time I have full copyright to that photo in the UK, maybe there are some things like statues, paintings that have prior copyright that must be followed, but a photo of another person? I took the photo so its my copyright unless I grant it to you, or you paid me to do it in a contract that gives you the copyright...

Or something along those lines...

Great thing about the UK is our very open laws on public photography, even if the Police are often not 100% up on the laws... So if your taking photos in an area that might get you attention from a copper, then brush up on the law and be polite if you are stopped, polite first, and firm afterwards, be sure to know your rights, I know I plan to.

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Re: @Andy S Non-FB user question

Also complicated somewhat by the fact that UK users enter into the T & Cs with an Irish company under Californian law. The "contracts require a consideration" principle exists in English law, it doesn't in Scotland, and I don't know about elsewhere.

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Thumb Down

Re: Non-FB user question

It depends. The EULA for Electronic Arts has a caveat declaring quite openly that your information will be taken outside an area of the DPA and by signing it you agree that this can happen. (Getting round your point of both parties agreeing)

It also quite clearly states that you CANNOT launch a class action suit or jury trial against EA for letting all your data go.

It ALSO states that if you login via facebook it can trawl your facebook account and if you agree on your mobile if can trawl that as well, including phone number etc. By 'trawling' I mean it can copy, take, read and save anything it wants.

As I have nothing to do with Facebook the caveat of DPA falls on it's arse if they have something similar (won't surprise me if they add one very soon), as does the caveat of both parties knowing. Because you agreed to it, and there is enough press and internet articles about how crap face book is with regards privacy. (you don't have any privacy, they own it all)

Given Facebook publically telling you what it is doing from the start I am note sure why they even made it to court, shouldn't be able to sue facebook as they signed up for it.

More fool them.

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Bronze badge

Ts&Cs are not enforceable.

Maybe not. But if you agree to let someone kick you in the nuts you shouldn't be surprised when they do.

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Anonymous Coward

Re: Big Ted

> They have now added a clause that you agree that no class action is possible when you agree to their EULA.

Have they ever attempted to enforce it?

> And remember they always had the clause that you had purchased a single use only license for say Windows and could not sale it to anyone else

When they went after resellers they used copyright law since the user was selling a copy of MS copyrighted software, they never attempted to enforce the EULA.

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Re: Non-FB user question

"more fool them" - yeah, fools who almost got $10 million from FB to go away...

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DN4

Re: Non-FB user question

We don't talk about copyright but about personal rights (privacy). Most of us don't have their faces copyrighted...

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Megaphone

You are not the customer, you are the product.

Now, write it out a hundred times. And if it's not done by sunrise, I'll cut your balls off.

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Re: You are not the customer, you are the product.

Careful there Mr Alter Ego. The People's Front for Facebook is on the prowl. ;-)

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Paris Hilton

Facewhat?

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Hi Ho, Hi Ho ...

[he visited Disneyland, and went on a ride, the theme park offered him the photo of himself and his girlfriend to buy - with his credit card information already linked to it. He noted that he had never entered his name or information into anything at the theme park, or indicated that he wanted a photo, or alerted the humans at the ride to who he and his girlfriend were - so, he said, based on his professional experience, the system had to be using facial recognition technology.]

http://readersupportednews.org/opinion2/298-185/12956-focus-the-new-totalitarianism-of-surveillance-technology

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Silver badge
Boffin

Good call by the judge.

The trouble is that regardless of the information placed on FB and what the EULA says, they in essence used your information and your 'like' as permission to use your face and name in a paid for advertisement of a product that you merely said you liked.

In short, FB used the end user as a spokesperson without any additional compensation or agreement to let them do this.

As an example, suppose I 'liked' the Ford focus. FB then charged Ford to create a 'testimonial' that said I liked the Ford Focus. I was never compensated, nor did I sign anything to give them permission to use my image/likeness and name as part of an advertisement campaign.

Note: I don't do FB so if anyone sees an Ian Michael Gumby running around, he's a poser.

And that is the problem and why people sued.

The problem with the settlement is that it didn't cure anything because there was nothing to stop FB from doing this again, and there wasn't anything which could show how the lawyers came to the round number of 10 million in compensation.

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Bronze badge
FAIL

So if I set up a fake account on FB and use my personal images which FB then uses, at what point have I agreed to such an action?

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"The problem with the settlement is that it didn't cure anything because there was nothing to stop FB from doing this again, and there wasn't anything which could show how the lawyers came to the round number of 10 million in compensation."

Which is the reason the Judge tossed it.

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Boffin

Unconscionable!

Most, if not all of these agreements fail.

Basically the "license" or "contract" is almost completely one sided in favor of the licensor with the offer being, take it or leave it.

Since there is no balance of power in the negotiation to allow for negotiation the agreement is unconsionable

and some or all of the terms cannot be enforced.

Unconscionability

Unconscionability means that a term in the contract or something inherent in or about the agreement was so shockingly unfair that the contract simply cannot be allowed to stand as is.

whether one side has grossly unequal bargaining power

http://www.nolo.com/legal-encyclopedia/unenforceable-contracts-tips-33079.html

see also.

Pay Pal terms Unconsionable

http://www.internetlibrary.com/cases/lib_case302.cfm

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I'd really like to see Facebook get fucked.

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