Can You Sue Facebook To Restore Your Falsely Taken Down Fan Page?

from the well,-you-can,-but-you-shouldn't-win dept

Tue, Mar 1st 2011 11:34pm — Mike Masnick

Eric Goldman has the details on an interesting trademark dispute involving Facebook. It involves two separate day spas, who both go by the name "Complexions," but in different regional areas, so there was no real problem in the past. But thanks to a global internet, things get trickier. One of the spas sent a takedown notice to Facebook claiming "copyright" infringement of the Facebook fan page of the other Complexions. As Goldman notes, the claim of copyright was almost certainly in error, as it probably meant trademark (though, we're seeing trademark holders exploit this confusion regularly these days, to pretend that the DMCA and its takedown process covers trademark too).

The Complexions who lost its fan page has gone to court to get a declaratory judgment that it didn't infringe against the other Complexions... and is seeking to have the court order Facebook to put the page back up. As Goldman points out, even if it makes sense for Facebook to put the page back up, the court almost certainly cannot legally mandate that, since Facebook is protected in taking down whatever content it wishes to take down:

The issue is so interesting because the DJ plaintiff's desired relief should be categorically unavailable. A court can't order a web service to restore an user's account/content for at least two independent reasons. First, such an order clearly violates the First Amendment-- the order would impermissibly circumscribe the service's freedom of speech and the press. Second, even if you don't want to get into the constitutional debate, IMO Congress resolved this issue in 47 USC 230(c)(2), which immunizes websites' "filtering" decisions. If Facebook takes down a fan page because it thinks the page is trademark infringing, 230(c)(2) says Facebook still has the full editorial discretion not to publish the page even if it later learns that the page wasn't trademark infringing at all.

A court *can* order the IP owner to stop sending takedown notices. See, e.g., Biosafe-Hawks, Design Furnishings, and Amaretto. My hope is that a web service would listen carefully to such orders in deciding if/how to remediate its prior responses to the takedown notices. My hope is that web services would also build in enough due process to their private adjudicatory processes so its users can fairly combat false takedown notices without needing judicial intervention at all. However, it remains fair game for the web service to make "bad" choices on both fronts, though we as consumers should draw our own conclusions about those who do.

Separately, Goldman points out that the suing Complexions is also claiming "false advertising," in noting that the Complexions who issued the takedown also sent friend/fan requests to its fans. He predicts that we'll start seeing more lawsuits over attempts to "poach" Facebook fans.

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Filed Under: section 230, trademark
Companies: complexions, facebook

15 Comments

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Anonymous Coward, 1 Mar 2011 @ 11:38pm

"As Goldman notes, the claim of copyright was almost certainly in error, as it probably meant copyright..."

Ironic. ;)
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aperson (profile), 1 Mar 2011 @ 11:58pm

"As Goldman notes, the claim of copyright was almost certainly in error, as it probably meant copyright"

i think one of those was suppose to be trademark.
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- Mike Masnick (profile), 2 Mar 2011 @ 1:09am
  
  Re:
  Dah. Fixed. That was a bad screwup. :)
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  - Berenerd (profile), 2 Mar 2011 @ 6:45am
    
    Re: Re:
    However, quite funny!
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mike allen (profile), 2 Mar 2011 @ 2:01am

As stated in the article "but in different regional areas," so how can the DMCA apply if either area is outside the USA where no such law may apply. once again America forcing its law on the world. I hope facebook are ordered to put the page back be interesting to see what happen.
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Capitalist Lion Tamer (profile), 2 Mar 2011 @ 2:51am

Facebook does this all the time
Although I haven't actually seen a DMCA takedown involved. They'll snag your self-created pages and randomly designate them as "Community Pages," meaning anyone can edit or post to it despite who you have set up as admins.

It's happened to me with a couple of pages and I believe the rationale is that these page titles might become useful to an actual paying customer (company) at some point, so the control is taken away from the user who created it and placed back into the hands of the "public" (Facebook). It's irritating but hey, you can always go create another page with the same name and run it from there, since FB doesn't seem to care how many pages have the same name.

I still can't see why a page titled "Whatever the hell you're talking about, I'm behind it 100%" should suddenly be a Community page, but whatever, it takes about 5 minutes to create one and spam all your friends into "Liking" it.
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Richard (profile), 2 Mar 2011 @ 4:43am

The Law
My hope is that web services would also build in enough due process to their private adjudicatory processes so its users can fairly combat false takedown notices without needing judicial intervention at all. However, it remains fair game for the web service to make "bad" choices on both fronts, though we as consumers should draw our own conclusions about those who do.

I've always had a bit of a problem with the idea that a major international company - that holds a de-facto monopoly in a given area - can be prosecutor, judge and jury in these cases.
Also it's asymmetric that the courts can order Facebook to take a page down (on behalf of a rights holder) but not to put one back up again when the rightsholder's request is found to be invalid.

I'm also not sure what the law in Europe says about these things - it may be different. Certainly there are some private organisations (for example sports governing bodies) that have had their decisions overturned by judicial review in Europe and I don't see why an organisation like Facebook might not find itself fall foul of a similar ruling.

Certainly, if they have a set of written down rules and policies on the matter the courts might overturn a decsion that they make if it fails to follow them.
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Not an Electronic Rodent (profile), 2 Mar 2011 @ 6:04am

Morons going global?
If you start applying what seems to be the "moron in a hurry" standard of trademark (and sometimes it seems copyright too) to a global or even national level the wheels are going to come off pretty quick surely? From a sufficient distance everything looks the same :-)

An interesting thought as to how to handle geographically seperated "conflicts" that butt together due to the global nature of the internet though. As far as I can see all the original legislation for trademark and other IP was written with the intent that it would only apply in specific sector(s) or locations where a direct conflict would occur. Even discounting the tenuous stretching that seems to occur regularly, it seems to have no idea within it (other than often seemingly floundering and random judgements in caselaw) what to do in a global marketplace.

But then IANAL, herhaps someone can explain to me how it's supposed to work?
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- Richard (profile), 2 Mar 2011 @ 6:09am
  
  Re: Morons going global?
  But then IANAL, herhaps someone can explain to me how it's supposed to work?
  
  A lawyer would tell you that it is supposed to work in a way that creates a lot of job opportunities for lawyers!
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Anonymous Coward, 2 Mar 2011 @ 6:06am

The lack of a trademark equivalent to DMCA notices seems to be driving people down this road. DMCA provides a nice format, and most online companies of scale are set up to receive and handle them.
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jamesbertini (profile), 2 Mar 2011 @ 8:38am

We lost our Facebook page
We are Denver Urban Homesteading, an indoor farmers' market in Denver, Colorado supporting small, local farmers. We use our Facebook page as our main means of communicating with our customers. Facebook disabled it two weeks ago due to a complaint by a family church in Pasadena, CA that has trademarked the phrase "urban homesteading." Of course, they have not trademarked "Denver Urban Homesteading" but that position does not impress Facebook which will not enable our page, and will not allow us to access the contact information for our 2200 customers.

Trademark owner Dervaes Institute will not communicate with us - other than to have sent us a cease and desist letter one week AFTER they took down our page - and consequently we have no way to get back our own intellectual property (my postings and my photos) and our customer list due to the phony trademark claims of the church.

Justice is denied us twice by the law: first by the erroneous issuance of a trademark for a common phrase ("urban homesteading" is even a subject heading in the Library of Congress) and second by not keeping up with technology by not having procedures to contest phony trademark takedowns.

And Facebook practices corporate irresponsibility: the DCMA does not cover takedowns of trademarks but they nevertheless follow the DCMA copyright rules by immediately disabling accounts accused of trademark infringement but then they do not follow the DCMA rules for re-enabling the material after a counter notification (I tried this and they told me to bug off).
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- Anonymous Coward, 2 Mar 2011 @ 9:02am
  
  Re: We lost our Facebook page
  Maybe shoot these folks and email? Not sure if they could or would help, but what the hey. :)
  
  http://www.eff.org/deeplinks/2011/02/riding-fences-urban-homestead-trademark-complaints
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Lazlo Fern III, 2 Mar 2011 @ 4:04pm

Facebook takedown
Interesting given the provisions of the DMCA. There is an issue of reciprocity implicit in the protection granted by the Act. Namely, protection is afforded on the expectation that a due process mechanism be allowed to address these gaps. It would be capricious and unjust to allow the service the unfettered right to decide arbitrarily what parts of the law it will follow even if it leads to such an absurd result.
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Lazlo Fern III, 2 Mar 2011 @ 4:04pm

Facebook takedown
Interesting given the provisions of the DMCA. There is an issue of reciprocity implicit in the protection granted by the Act. Namely, protection is afforded on the expectation that a due process mechanism be allowed to address these gaps. It would be capricious and unjust to allow the service the unfettered right to decide arbitrarily what parts of the law it will follow even if it leads to such an absurd result.
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Camele Gopaulsingh, 13 Mar 2011 @ 4:29am

Hi, Meg, long time no see, how's school, What's your email address?
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