Can terms of service prohibit a user from quoting content on a website?

Question

I was wondering whether Facebook's TOS on automated data collection would actually be legally feasible.

As far as I am concerned there is a universal right of quotation. Of course that will vary from the implementing country, but here in Germany this law is pretty strong, we are even allowed to quote entire pages, songs or pictures.

Does it matter whether I quote in an automated way? Suppose I visit Facebook once a day to observe a time change on the social network (e.g. a community page). Every day, I would then republish this information, explicitly marking it as a quotation, and referencing it back to Facebook. The regulation suggests that for scientific purposes the quotation right can practically be expanded indefinitely.

I cannot see how Facebook could infringe with the universal right of quotation, which in this case weighs much more than their TOS. Technically speaking, there is no difference in me using a browser to visit their website, or me using a script that uses a browser to visit their website.

Answer 1

Quoting content may or may not constitute copyright infringement, depending on the various factors that go into the fair use defense. Short quotes which are made for the purpose of discussion, research and commentary and not for copy would be squarely in the domain of "fair use" under US law. That means that the copyright owner would not succeed in suing you for quoting them: under the statutory mechanism for recognizing his right to his intellectual product, there is a limit on how much control he can exert over your behavior (since the two of you have not worked out some kind of agreement -- copyright law creates rights even when there is no contract).

As for Facebook, you have a contract with them, embodied in the terms of service. You have been given permission to access material that they host (permission is required, under copyright law), and their permission is conditional. It says "you may access stuff on our platform only as long as you do X": if that includes a clause "don't be nasty", then that limits your right to speak freely and be as nasty as you'd like. If it says "don't quote even a little", that means you cannot quote even a little, even when you would have the statutory right to quote a little (or, to be nasty).

Fair use would mean that you can't be sued for copyright infringement of the stuff that you quoted a little of. You can, however, be expelled from Facebook. You probably cannot be sued for "accessing Facebook without permission". There is a federal law against unauthorized access of computer networks, and there was a failed attempt to construe violation of a TOS as "unauthorized access" – it isn't. But accessing Facebook necessarily involves copying (that's how computers work), and there is no "fair use" defense whereby everybody has a fair use right to access Facebook. Theoretically you could be sued for copyright infringement, for accessing Facebook's intellectual property without permission. Also, Facebook can rescind your permission to access their content (see this case), and once you have been banned, it is a crime to further access their network.

This assumes that there is no overriding limit on contracts that would nullify a no-quoting condition. There is no such limit on contracts in the US, so such a contract would be enforceable. There is also nothing illegal (unenforceable) about a TOS which prohibits automated methods of access.

Answer 2

The Berne Convention on copyright specifies the Right to Quote as an exception to copyright.

Article 10 (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

But as the second paragraph says, it is up to each country to determine in law how this right to quote shall be specified. Many countries cover this right under their broader rights of fair use or fair dealing. There are also several countries which have not signed the Berne Convention.

Wikipedia goes on to say that

National legislations usually embody the Berne Convention limits in one or more of the following requirements:

• the cited paragraphs are within a reasonable limit (varying from country to country),
• clearly marked as quotations and fully referenced,
• the resulting new work is not just a collection of quotations, but constitutes a fully original work in itself.

In some countries the intended use of the work (educational, scientific, parodist, etc.) may also be a factor determining the scope of this right.

This right to quote is most unambiguously applied to quotes in academic texts, where you can quote from something and then discuss, engage, refute it, etc. Most academics probably don't even know that the right to quote is specifically granted by the Berne Convention, it's just a simple fact of how academia functions.

What you propose to do in the question is not similar, and it sounds like you might be making what the third point there calls "a collection of quotations". If your web page consists of nothing but quotes from Facebook, without commentary or discussion, while it's not impossible that a court could rule in your favour, I wouldn't bet on it. If that's what you intend to do, make sure you consult a lawyer who can tell you whether your project would be within what your country's laws permit.