Judge Says You Don't 'Own' The Facebook 'Likes' On Your Page

from the good dept

In a world where people are always pushing the idea of "intellectual property" over just about everything, is it really any surprise when people assume all sorts of property-like rights in things that clearly shouldn't have any such thing? In a slightly bizarre lawsuit over the control of a Facebook fan page for the TV series The Game, the creator of the page, Stacey Mattocks, argued that BET effectively appropriated the approximately 6.78 million "likes" the fan page got. The details of exactly how this happened aren't worth getting into, but suffice it to say it was a contract negotiation gone wrong, as BET sought to bring the fan page under its official control. All that matters here is that among the other charges in the lawsuit, Mattocks claims that BET got Facebook to transfer those likes to its official page, which she alleged is a form of unlawful conversion.

However, the court has pretty soundly rejected this, noting that there's no property right in Facebook "likes" and thus no property to unlawfully "convert."
Based on the record, Mattocks cannot establish that she owns a property interestin the “likes” on the FB Page. As explained in Part I.A, “liking” a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content. At any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button. So if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them.... Given the tenuous relationship between “likes” on a Facebook Page and the creator of the Page, the “likes” cannot be converted in the same manner as goodwill or other intangible business interests.

Even if Mattocks could claim an ownership interest in the “likes” on the FB Page,she cannot demonstrate that BET’s migration request was unauthorized or wrongful. After Mattocks breached the Letter Agreement by limiting BET’s access to the Page, BET asked Facebook to migrate the “likes” to the other official Series Page. Facebook then reviewed the FB Page in accordance with its corporate-brand policies and determined that BET’s request was valid. More, as already explained, no substantial evidence shows that BET’s request violated any other legal duty to Mattocks.
Either way, it's nice to see a legal ruling that recognizes a lack of property rights in the likes other people give to your page. It would be even nicer if we stopped trying to declare everything a form of "property" when that makes no sense at all.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    TruthHurts, Aug 21st, 2014 @ 10:12am

    That's just wrong.

    If I make something as a fan of something else, and other fans "enjoy" my something, that doesn't mean that the something that my something is related to gets the "enjoyment factor" that my something garnered.

    If anything, the "enjoys" should have just been deleted, and BET's page can get their own if people want to "enjoy" their page.

    Stupid judge, stupid techdirt.

     

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  2.  
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    Anonymous Coward, Aug 21st, 2014 @ 10:13am

    So these cases are brought by people who do not know what intellectual means and want the courts to define what property is

     

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  3.  
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    radarmonkey (profile), Aug 21st, 2014 @ 10:14am

    I say 'Class-Action' on behalf of the 'Likers'

    (I have no horse in this race. I don't care about the show at all. However ....)

    If I were a person who likes the Fan-page but dislikes the Official-page, I would have no way to show that except to 'Like' the one and do nothing with the other. By taking my like away (or simply copying it) from the Fan-page to the Official-page, my freedom of speech has now been affected and interfered with. I CHOSE not to like you; don't claim I like you if I liked something similar to you.

     

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  4.  
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    Anonymous Coward, Aug 21st, 2014 @ 10:15am

    Calling them "likes" is an interesting move by defendant. Plaintiff would have been much better off to call them subscriptions. Which is much more like what they are.

    There is certainly value in these subscriptions, otherwise BET wouldn't have wanted to move them.

    She needs to get a better lawyer.

     

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  5.  
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    DannyB (profile), Aug 21st, 2014 @ 10:23am

    Re:

    I can see it both ways.

    As you say, the "Like" is probably for the fan site, not for the thing the fan site is about.

    But now we get into, is the "like" for the fan site, or for the author of the fan site?

    If the fan site changes ownership, how do we know which likes were for the fan site (now under new ownership, but likes should be retained) or for the original author of the fan site (likes should be discarded)?

    If the new owner of the fan site changes the site radically, then people who once liked the fan site my no longer like it. (This is assuming they picked "Like" because they liked the site, rather than liking its former author.)

     

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  6.  
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    zip, Aug 21st, 2014 @ 10:24am

    30 years ago, Texaco v. Pennzoil established that an informal, implied agreement could be worth tens of billions of dollars. Perhaps it was implied (or at least assumed) between these parties that Facebook "likes" were essentially permanent rather than easily transferable en mass.

    Facebook "likes" certainly have a dollar value (of sorts): just ask any of the many 'astroturfing' companies out there how much they would charge to give your page 7 million 'likes' -- I doubt the price is cheap. As just about everything imaginable these days seems to have a legally-recognized dollar value (whether warranted or [usually] not) I don't think that this sort of issue will go away anytime soon.

    But realistically, there at least should be a disclaimer informing visitors that the page's "likes" (or lack of) were not earned the usual way.

     

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  7.  
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    DannyB (profile), Aug 21st, 2014 @ 10:26am

    Definition

    Intellectual Property -- (noun) The fantasy that ideas or actions are property, created by strictly avoiding anything intellectual, such as reason, facts or logic.

     

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  8.  
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    Anonymous Coward, Aug 21st, 2014 @ 10:28am

    Re: Re:

    Can't people simply revoke their likes?

    Or were those likes contractually signed over (sarcasm) and now owned for 95+ years by the owners?

    But what if you no longer like the site? Wouldn't it be fraud to claim that you do? Now we have intellectual property vs fraud. It's infringement to revoke your like but it's fraud not to.

     

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  9.  
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    Anonymous Coward, Aug 21st, 2014 @ 10:39am

    Re:

    "Perhaps it was implied (or at least assumed) between these parties that Facebook "likes" were essentially permanent rather than easily transferable en mass."

    But if a like can be revoked by the liker, whenever the liker wants, then it cannot be permanent or treated as permanent.

    The question of whether a transferred like be unliked by the original liker also goes towards establishing who the like belongs to. And why is a like any different from, say applauding by clapping once at a theater performance. Actors don't own the 'clapping sounds' made by their fans, I presume, nor do Justin or Selena own the "I love Justin" or "I love Selena" doodled in 13yr old's school books (just an example, folks).

     

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  10.  
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    Spaceman Spiff (profile), Aug 21st, 2014 @ 10:43am

    Even so

    Since FB "likes" cannot be owned, then when FB transferred the likes to BET's page from the other, they tacitly confirmed "ownership". In retrospect, they should ONLY have copied them. Whether or not there is a legal issue here is another thing. Not being an attorney/lawyer, I can only wonder.

     

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  11.  
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    Anonymous Coward, Aug 21st, 2014 @ 10:52am

    Facebook could have headed off this aspect by simply not transferring likes at all. If people like the new version, they'll "like" it again. The reason a person clicked like on something is as unclear as the reason a driver honks their car horn. Did they like the page, or the thing the page is about, or the person who created the page, or the conversations going on on the page, or to get something free out of a likebait promotion? Is the driver telling you to go faster, or watch out, or say hi, or tell you your coffee cup is on your car roof, or that you just hit someone? Unless Facebook has people qualify their reasoning, transferring likes seems like some sort of fraud. Facebook is saying that you're expressing something you might not intend.

     

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  12.  
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    Anonymous Coward, Aug 21st, 2014 @ 11:33am

    Re: I say 'Class-Action' on behalf of the 'Likers'

    This. I dont especially care about the specific situation, and i dont think the likes should be considered property, but its the while transferring of likes to someone else that seems wrong to me. Theres bound to be people who dont like the official page - i find often times fan pages are a better resource for information than official ones, and unless they specifically told everyone that thier choices had been transferred... (And this is facebook, ofc they didnt) then I would be annoyed if it were me.

     

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  13.  
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    Anonymous Coward, Aug 21st, 2014 @ 11:34am

    As others have said, if I liked the fan page but not the official page, why should the official page get my Like? Especially if the Like results in posts from the Liked site in my news feed.

    Also: What if I had Liked both? Does the official page now have two "Likes" for me? Depends on how the transfer was implemented, sure. But if it was a naive implementation that did grant an extra Like, what happens if I later "Unlike" the page?

     

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  14.  
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    Anonymous Coward, Aug 21st, 2014 @ 11:38am

    Re: Re:

    But if a like can be revoked by the liker, whenever the liker wants, then it cannot be permanent or treated as permanent.

    Having it revoked by the Liker is different from being transferred to a third party.

     

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  15.  
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    zip, Aug 21st, 2014 @ 11:41am

    Re: Re:

    Actually, the "applause" you see and hear on "live" TV shows is generally fake -- a tradition that's hundreds of years old.

    https://en.wikipedia.org/wiki/Claque

    I'd imagine that it's in their contracts, detailing how much applause a star gets (or appears to get) whether from actual (paid or unpaid) audience members, or having the sound dubbed in post-production. As modern stage microphones are directional and essentially only record the speaker's voice, the "applause" you hear on TV is always mixed in from separate recordings. Therefore, even when the audience is "real", the show's producer has essentially full control of applause.

     

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  16.  
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    Anonymous Coward, Aug 21st, 2014 @ 6:35pm

    I get it , I really do , BUT.. If the shoe been on the other foot, BET would have claimed Infringement, and issued a take down request.

     

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  17.  
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    G Thompson (profile), Aug 21st, 2014 @ 9:15pm

    Re: Definition

    That's going on the wall! ;)

     

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  18.  
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    G Thompson (profile), Aug 21st, 2014 @ 9:22pm

    The judge has now specifically implied that the 'likes' are actually owned and controlled by the likee.

    Why has not BET or Facebook sent a message to all likees that there likes have been transferred to BET? Therefore allowing them to control whether or not there original like should be converted or not.

    There would now be a case by the actual likees against Facebook for conversion.

    Especially in light of this
    "At any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button. So if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them...."

     

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  19.  
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    Eldakka (profile), Aug 21st, 2014 @ 9:30pm

    Goodwill?

    Could it be considered goodwill?

    Often when a business is sold or changes hands, some amount of money is line-itemed/attributed to 'Goodwill'. Could facebook likes be considered in the same light?

     

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  20.  
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    Niall (profile), Aug 22nd, 2014 @ 4:43am

    Re:

    Then they should have individually contacted each Liker and asked for their permission to move it.


    After all, don't we have to get permission to 'utilise or transform' every single little individual element of reality that we interact with or share?

     

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  21.  
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    Ninja (profile), Aug 22nd, 2014 @ 5:11am

    That's an issue. How am I going to transfer all the likes I"ve ever received to may heirs?

     

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  22.  
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    DannyB (profile), Aug 22nd, 2014 @ 6:27am

    Re: Re: Re:

    If you un-like something, or withdraw your 'like' of it, then who owns the intellectual property rights on that action?

    Maybe the act of un-liking a commercial business should also create a cause of action for them to sue the person who un-liked them. But the lawsuit should be under a seal for the porpoise of keeping it a secret.

     

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  23.  
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    John Fenderson (profile), Aug 22nd, 2014 @ 9:26am

    Re:

    I don't use Facebook, but if I did, and I "liked" a page, and that "like" got transferred to another page, I would be royally pissed because the implication would be that I "liked" the new page when I did no such thing.

     

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  24.  
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    Raging Alcoholic, Aug 22nd, 2014 @ 10:26am

    Re: Re: Re:

    Absolutely correct. If your law professors writes you a letter of recommedati from you and now the recommendation is of me.on that will really help me get a job, I cannot buy the letter
    That is all a like is, a recommendation. I would also bring into this argument the notion of businesses in America paying a premium to acquire the "goodwill" of another company while buying is ownership.

    I think likes should be treated as property.

     

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  25.  
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    Anonymous Coward, Aug 22nd, 2014 @ 1:33pm

    A very well-written summary and commentary on the case was posted on the Technology & Marketing Law blog. Nobody comes out smelling like a rose.

     

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  26.  
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    Troll, Aug 22nd, 2014 @ 2:22pm

    Ah, but I do own Facebook dislikes! Facebook doesn't have a dislike button because I own them all! Muahahaha!

     

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  27.  
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    John Fenderson (profile), Aug 25th, 2014 @ 8:56am

    Re: Re: Re: Re:

    "I would also bring into this argument the notion of businesses in America paying a premium to acquire the "goodwill" of another company while buying is ownership."

    But you cannot buy the goodwill gained by other entities. It's a logical impossibility.

     

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