Metropolitan News-Enterprise


Monday, August 17, 2020


Page 3


Ninth Circuit:

 Facebook Isn’t Copyright Infringer by Not Removing Posting

Copyright Proprietor, Who Lost Ability to Manage Account, Says Her Demand to Take Down Postings Terminated License Granted to Social Media Giant; Opinion Says She Was Obliged to Make Deletions


By a MetNews Staff Writer


A woman who caused her copyrighted works to be posted on, then repeatedly ordered Facebook, Inc. to remove the materials after she lost the ability to access and manage her account but was told she would have to delete them herself, has no cause of action for copyright infringement, the Ninth U.S. Circuit Court of Appeals held Friday.

Under the terms of service, a memorandum opinion of a three-judge panel says, it’s the user who must make deletions.

The holding comes in a case in which Tami Harrison, who lives in Atlanta, sued Facebook in the District Court for the Northern District of California after a judge in the Southern District of Alabama booted the case for lack of jurisdiction. Facebook, Inc. is headquartered in the City of Menlo Park in San Mateo County.

Harrison alleged in her pro se complaint that “Facebook had consent” to display her copyrighted materials “when Plaintiff and staff was able to log on to their website to manage it,” adding:

“[B]ut after Plaintiff was not able to manage their pages they rescinded authorization to Facebook in writing and asked repeatedly to remove and that Facebook did not have Plaintiffs permission or consent to publish the images on its Website thereafter. Upon Information and belief, the Defendant is responsible for the events described herein and are liable to Plaintiff for the damages they have incurred.”

District Court Decision

District Court Judge Jeffrey S. White of the Northern District of California said, in dismissing the action with prejudice on July 2, 2019:

“Plaintiff argues that she rescinded authorization when she asked Facebook repeatedly to remove the copyrighted images and thereafter did not have a license to publish the copyrighted images. However, the terms of service do not strip Facebook of its license until the user deletes her IP content or the account….The terms of service explicitly require that Plaintiff delete the content herself or close her account.”

He continued:

“Although Plaintiff contends that she is not personally able to delete, manage, or close the account due to her not having her agent’s log-in credentials, there is no support for the contention that Facebook locking her out of the account constitutes an affirmative act that amounts to a copyright violation. There is no support for the allegation that Facebook engaged in volitional conduct needed to state a claim for direct copyright infringement. Instead, it appears Plaintiff cannot allege that Facebook has done anything but serve as a passive host to content uploaded and created by Plaintiff and her agent. This conduct does not constitute a copyright violation.”

Consultation Urged

The judge urged that Harrison and Facebook representatives confer in an effort to get her works removed from the website. But the controversy, unresolved, went to the Ninth Circuit.

Its opinion was signed by Chief Judge Sidney Thomas, Judge M. Margaret McKeown, and Senior Judge Michael Daly Hawkins. They said:

“Harrison has failed to allege that Facebook engaged in any volitional conduct that would give rise to a claim for direct copyright infringement….Harrison or her agent uploaded her copyrighted works to Facebook. Harrison has alleged only that Facebook passively hosted the content and failed to remove it when Harrison was unable to follow Facebook’s procedures for removal.

“Harrison or her agent also consented to Facebook’s terms of service when the content was uploaded. By doing so, she or her agent gave Facebook a license to display the copyrighted works. That license expires only when the user deletes the images or the entire Facebook account—neither of which Harrison has done. Facebook therefore retains a license to display Harrison’s copyrighted works.”

The case is Harrison v. Facebook, Inc., 19-16339.


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