IP And Social Networks: The Paris District Court Invalidates IP Clauses Of Google+ Terms Of Use

Author:Ms Catherine Muyl and Marion Cavalier
Profession:Foley Hoag LLP
 
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It's been rough weather for Google in France. Three weeks after the French ‎Data Protection Authority imposed a record fine against Google for non-compliance with the GDPR, the Paris District Court ("Tribunal de Grande Instance") invalidated 38 clauses of Google's Privacy Policy and Terms of Use for Google+, the Internet-based social media network owned and operated by Google.

This decision was rendered on February 12, 2019 in an action that was initiated against Google Inc. in 2014 by an old French consumer not-for-profit organization, UFC QueChoisir. It took 4 years for the case to get to trial, and an additional 11 months to issue a 136 page long decision, which is quite unusual according to French standards.

The court invalidated 38 of the Privacy Policy and Terms of Use clauses for Google+, which amounts to more than half of the total number of clauses. The clauses were invalidated on various grounds, including non-compliance with the Consumers Code and the Data Protection Law. Google claimed that the Consumers Code did not apply because its Google+ services are provided free of charge. The court disagreed, finding that the criterion is whether the services are being provided in consideration of something, which, in this case, was Google's ability to use the information gathered from its consumers to sell targeted advertising.

Among the invalidated clauses include three IP clauses discussed below:

Clause 16 – General License Granted to Google for Content Submitted by Users

Clause 16 of Google+'s Terms of Use provides that users grant Google a worldwide license to use all content submitted by the users for the entire duration of copyright protection, for use in connection with Google's existing services and for new services that Google may offer in the future. The court held that this clause was contrary to two rules of French copyright law.

First, ‎the global assignment of rights on future works is prohibited under article L.131-1 of the Intellectual Property Code. This old rule of French copyright law was designed to protect young artists and help them free themselves from publishers or producers who may otherwise have required exclusive publication rights to their future works. This rule still exists today and is used for example to invalidate assignment of rights clauses that can be found in some employment contracts. ‎Clearly, the clause in the Google+ Terms of Use refers to future works globally, since it does not point to any...

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