Judge: Facebook Can Use Terms of Service to Keep Developers In Check

Despite user backlash, and ongoing polls around revised terms, Facebook's terms of user carried the day.

Facebook and Power.com are dueling over Power.com's attempts to access the Facebook network outside Facebook authorized developer channels.  (Previous post here.)  Power.com moved to dismiss Facebook's claims.  Judge Fogel denied Power.com's motion to dismiss in what should be a pretty unsurprising result.  (Access the order here [pdf].) 

Copyright Claims: on the copyright claims the court looked to Ticketmaster [Justia page] and found that each time Power.com accessed Facebook's network, Power.com made a copy of Facebook's website.  The court relied heavily on Facebook's terms of use which prohibit users from accessing Facebook for the purpose of sending unsolicited communications or "downloading, scraping, or distributing . . . any content on [Facebook's] website [excluding user content]."  The terms also prohibit anyone from using bots, scrapers or other automated means to access the site.  According to the court, even assuming Facebook does not own user content, Power.com copies the entire Facebook site when extracting user content and in so doing violates "Facebook's proprietary rights."  The court went beyond this and found that Facebook's allegations stated a claim for "indirect copyright infringement."  In other words:  Facebook users violate Facebook's rights when accessing Facebook through Power.com, and this states a potential claim for "indirect copyright infringement" against Power.com.

DMCA/Trademark Claims:  The court didn't delve into the details of Facebook's DMCA and trademark claims, but rejected Power.com's attempts to have those claims dismissed as well.  According to the court, Facebook sufficiently stated that it had technical measures in place to prevent unauthorized access by Power.com and Power.com circumvented these measures.  Based on this the court declined to dismiss the DMCA claim.  Similarly, with respect to the Lanham Act claim, the court concludes that Facebook alleges sufficient facts to state a claim of confusion and affiliation between Facebook and Power.com.

What to Make of This?   The court didn't delve into the details.  Power.com's initial moving papers were pretty sparse on details so maybe this is not surprising.  Facebook clearly alleged enough to state some sort of cause of action (or actions).  I guess the big surprise is how much credence the court gave to Facebook's terms of service.  I am guessing the lawsuit will settle in due course (I can't see what incentive Power.com has to continue to litigate this), but in the meantime, developer beware!  Existing precedent makes it pretty hard to develop tools to access third party networks outside channels established by the third party.
 
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