Copyright infringement through 'Like' – a problematic issue on Facebook

In any case, lawyers who deal with copyright and the internet day in and day out are unlikely to have been surprised: a report about the first Facebook cease-and-desist letter for a violation of photographic rights is doing the rounds on the internet. The outrage is great, although on Facebook and other social networks the same applies as elsewhere: foreign photographs may only be reproduced and made publicly accessible with the consent of the photographer. However, this realisation is not the actual problem.

The reason for the cease-and-desist letter was a post by a Facebook user on the wall of another. The subject was a photograph with the publication of which the rights holder was not in agreement. Should the allegation be true, this undoubtedly constitutes a copyright infringement by the author of the post and perhaps also by the user on whose wall the infringement was committed. The latter is in any case liable as a disturber of the right from the moment he becomes aware of the infringement. When this knowledge exists – whether from the moment of becoming aware of the post or only from the moment of becoming aware of the rights holder's lack of consent – can remain undecided here.

The actual problem arises in the event of further dissemination via the 'Like' function on Facebook and the exponential spread of the infringing content associated with it. Suppose 10 virtual friends like the posted content and 10 of their friends each find it appealing in turn, then 110 potential copyright infringements are already accumulated. A money-printing machine could hardly work more effectively.

A prerequisite for this scenario is, however, that each of these 110 users commits a copyright infringement. This could be questionable because the original post already resulted in a reproduction of the digital photograph being made on Facebook's servers or elsewhere and made accessible. Everything that comes after that, from a non-legal perspective, merely constitutes a reference to this original infringement.

In any case, for links to infringing content, it is recognised that these do not constitute an independent infringement provision and thus no copyright infringement – at least not if no security measures are circumvented that are intended to restrict access according to certain criteria. The situation in the everyday case dealt with here appears to be comparable: by clicking on the 'Like' button, only another reference to the already existing (infringing) photograph is generated.

However, it is not that simple. Unlike a simple link, the 'Like' option does not merely produce a technical reference to the infringing content, but rather its adoption into one's own profile. Although the storage location remains the same, the photograph is placed in a new context. This is sufficient for an independent copyright infringement, especially since in the previously typical case – embedding external images from an external storage location – no one asks whether a wrongful reproduction was simultaneously carried out. In the case of public making available under § 19a UrhG applicable here, one might at most ask whether the reposting on Facebook is public or private. This depends not least on the privacy settings of the respective user and the quality of their virtual acquaintances. I am more inclined to assume public making available, because it is inherent in social networks that even from a personal perspective completely insignificant friendships exist.

Furthermore, there is no mere reference to external content or a (non-technical) citation. The user who chooses the 'Like' option does so out of conviction, because he identifies with the content. In doing so, however, he makes it his own, which is why it ultimately constitutes his own content.

As a result, all reposts of an infringing entry are thus tainted. The consequence for individual users is at least a right of the rights holder to obtain an injunction, which constitutes primary liability and not merely liability as a disturber of the right (own content!). Whether negligence and thus a claim for damages applies to him is another question. However, it is to be feared that the courts will also apply the relatively strict duty of care standards here, although this can only be achieved with a complete disregard of the reality of social networks such as Facebook.

The greatest problem, however, is faced by the author of the original post. He can and must expect further dissemination of the content and is thus potentially liable for each repost as the primary infringer. This means that in theory he faces claims for damages by the rights holder for hundreds or thousands of infringements. And all of that even if he did not act intentionally, but only wrongly assessed his right of use through negligence, or was not aware of the wrongfulness of his actions at all.

Anyone with malicious intent will therefore not concern himself with a single post in the future, but will watch the dissemination of the infringing content and then strike at the original infringer at the appropriate time. Incidentally, the foregoing applies not necessarily only to photographs, but also in the case of other copyrights and personality rights infringements. So it remains to be seen.