Facebook has a real problem with third-party developers who mess with its platform without the social-networking giant’s consent-it wants them to go through the proper channels. But while Facebook clearly doesn’t like it-is it actually illegal? That question is being put to the test in the Power.com case, and it now looks like Facebook’s case won’t be as wide-ranging as it initially requested. Facebook lawyers have unilaterally dropped five of the eight claims it brought against Power.com just over two years ago, including all of its copyright and trademark claims. That follows a setback in July of last year, when a judge didn’t let it win the case outright.
Facebook spokesman Andrew Noyes said this about the dropped claims: “This step simply narrows and focuses our case. We are still pursuing our claims for unlawful access to Facebook under California and federal law.”
L. Timothy Fisher, a lawyer for Power.com, says that his client is pleased that Facebook dropped the five claims. He also said Power.com will be preparing motions to knock out the remaining claims, but otherwise declined to comment on the case.
This all started back in 2008, when Brazil-based Power.com went ahead and built a program to let users access their Facebook account, and other social networks, all from one place-and it built the software without Facebook’s consent. Power.com was promptly sued by Facebook at the end of 2008.
It’s worth noting that Facebook dropped all the copyright and trademark claims it had; it still is arguing that Power.com broke California and federal computer fraud statutes. That seems to indicate that Facebook’s legal team has decided those are the laws that have the best chance of keeping unwanted visitors off the site, and that intellectual property law-often a powerful hammer for tech companies to get what they want-won’t work be the best tool for the job.
In July 2009, Power.com countersued Facebook, saying its “data protectionism” violated antitrust laws. But that argument went nowhere, and a judge threw out the counterclaims; the case now consists solely of Power.com defending itself from an internet company with formidable resources. The site no longer allow users to access their Facebook accounts, a major feature that was likely disabled while the lawsuit is pending.
There is some logic to the idea that Power.com’s business model could have appeal in Brazil, one of a very few markets where Facebook isn’t the leading social network; Google-owned Orkut has 36 million users to Facebook’s 9 million. But if Power.com hopes to build a platform from which users can access all their social networks, including Facebook, it will still have to win this expensive uphill battle in U.S. courts.
If the case actually gets litigated to the end, it could determine whether state and federal computer fraud laws can be used to enforce a kind of “data protectionism.” So far, internet companies have had some success using computer fraud statutes to kick out unwanted visitors, although as Santa Clara Law Prof. Eric Goldman has noted, that the California statute remains legally untested. But the federal computer anti-fraud law has been useful to plaintiffs in the past.
If Facebook suffers an upset loss here, it will be much more difficult to maintain its business model of being a “walled garden.” The company would have to rely on persuasion and technological counter-measures, but wouldn’t be able to rely on the force of law to forbid other companies from access. Still, those computer fraud statutes have tended to favor plaintiffs in past cases, so despite the setbacks Facebook’s chances are good.