Who among us hasn’t experienced that recurring moment of frustration when signing onto a new online service and that dreaded little window opens, allowing you to read the numerous pages of terms and conditions of use at a generous clip of only 4 to 5 lines at a time? And who among us hasn’t started to read them, only to scan and scroll progressively faster until reaching the bottom, as if the really egregious terms might appear in bold red type that you easily will spot while speeding by? How about that palpable recipe of consternation, doubt and despair that sets in as you hover over the “I Agree” button that unlocks the door to an exciting new online world to which you absolutely must have access in order to share the latest video of your cat chasing that red light up the wall?
If you’re like most people, you probably have one of two thoughts as you click through with reckless abandon, “agreeing” to whatever the online provider requires because your creative genius cannot be contained. You might think, short of committing your first-born to a lifetime of hard labor in a rock quarry in South America, that those terms and conditions surely can’t be that bad (and, if you’re thinking “well now, what’s so bad about that?” just go ahead and exit this article now, as you need different counsel). Or, alternatively, you might think that surely those terms and conditions can’t be enforced against you. Right? Think again.
In a case of first impression at the appellate level (that’s what we say when another comparable court hasn’t addressed the same issue before), the Fourth Circuit Court of Appeals – which hears appeals from federal courts in Maryland, Virginia, West Virginia, North and South Carolina – has held that clicking “I Agree” at the end of one of those online agreements constituted an electronic signature under the federal Electronic Signatures in Global and National Commerce Act and committed the user to the terms and conditions of use. Buried within those terms that only the most patient users – or at least those with the most time on their hands – might have come to was the following:
“All images submitted . . . become the exclusive property of [website operator]. By submitting an image, you hereby irrevocably assign (and agree to assign) to [website operator], free and clear of any restrictions or encumbrances, all of your rights, title and interest in and to the image submitted. This assignment includes, without limitation, all worldwide copyrights in and to the image, and the right to sue for past and future infringement.”
The court found that the website users’ act of clicking “I Agree” also fulfilled the Copyright Act’s requirement that a transfer of copyright ownership be “in writing and signed by the owner of the rights conveyed.” So, by clicking “I Agree” and subsequently uploading photographs to share with others, the website users divested themselves of all copyright in – and, thereby, control over the future use of – their images in favor of the website operator.
That’s a pretty powerful result, when you consider its full extent and the possible ramifications. First, for any user of online websites, or purchaser of downloadable digital files who similarly clicks through such agreements, the simple act of clicking the “I Agree” or “Accept” button has the same force as dipping your quill pen in the fountain and inking your John Hancock at the bottom of a parchment. Second, the same oh-so-simple mouse click carries with it the power to transfer away the users’ most valuable individual rights – copyright, here, but conceivably all other rights and interests, including those previously requiring a written document. Thus, what previously was yours and only yours now belongs to someone else to edit and use, or resell, as he/she/it pleases. Moreover, you also may have relinquished any right of recourse and remedy you previously had for dealing with adverse consequences arising down the road. For photo and video sharing websites, everyone from the casual amateur with a phone camera to the most seasoned professional photographer or artist may unwittingly be in the business of creating valuable images for another entity to reproduce and sell on the Internet.
So, before uploading your pictures from the family’s last trip to the beach, be sure to check the terms and conditions to which you agreed when signing onto the site (usually available under a menu tab) lest those photos show up on an advertisement for a family-friendly nude beach in the Gulf – with all the swimsuits photoshopped out!
Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., Case No. 12-2102, 2013 WL 3722365 (4th Cir. July 17, 2013)
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