Facebook Sued for "Like" Button Patent Infringement - Fordham Intellectual Property, Media & Entertainment Law Journal
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Facebook Sued for “Like” Button Patent Infringement

Facebook Sued for “Like” Button Patent Infringement

Now that we’ve lost count of the many lawsuits Facebook has faced in its 10 years of existence, the newest suit filed against the social media giant, a patent infringement claim filed in Virginia earlier this month, might catch our attention.  Patent infringement, you might say? Facebook laughs in the face of patent infringement!  This time, however, Facebook’s treasured and iconic symbol, the Like button, is in danger.  The  technology behind the iconic thumbs-up image is being challenged; the suit could mean a drastic change to not only Facebook’s functionality, but also to our interaction with social media.

Can anyone actually remember Facebook sans the Like button? It’s surprising, but the Like button has only been around since 2009.  It may be a testament to the rapid pace of our culture, but that just feels like forever.  The “thumbs up” symbol has permeated all social media interactions; transcending beyond the four corners of Facebook itself and epitomizing the interconnectivity we all take for granted.  Social media and online engagement have been molded by this seemingly insignificant yet universal symbol.  So here is the crux of the problem—someone outside of the Facebook empire seems to have thought of it first.

To be exact, Joannes Jozef Everardus Van der Meer, a Dutch programmer, received patents in 1998 for a feature equivalent to the Like button.  Van der Meer intended to implement the features on an online diary type website called Surfbook, which he founded in 1998. The site was oriented around personal web page diaries where people could share things with friends and like things using a ‘like’ button.

However, Van der Meer registered his site but never completed his project because he passed away in June 2004—only one year after Facebook came on the scene.  His widow and patent holding company, Rembrandt Social Media, LLC, are bringing this suit on his behalf.  The complaint alleges that Facebook “bears a remarkable resemblance, both in terms of its functionality and technical implementation, to the personal web page diary that Van Der Meer had invented years earlier.”

Specifically, the complaint states that Facebook, like Van Der Meer’s patented inventions, allows people without special training to create “ a personal webpage diary,” which can be customized to include personal and third party information and may be arranged chronologically.  The ‘wall,’ ‘timeline’, and ‘newsfeed’ are all included in the complaint, for good measure.  Furthermore, Facebook’s placement of advertisements on personal pages was also preceded by Van Der Meer’s patent.  Most significantly, the complaint alleges that Facebook’s Like button, as well as, the ability to transfer third party content to personal pages and distribution of programing code for the implementation of this functionality on other sites, is a violation of Van Der Meer’s patents.

Rembrandt is alleging direct, indirect, and willful infringement of Van Der Meer’s 6289362 and 6415316 patents and is asking for reasonable damages to be set by the Court.  The complaint includes claims against AddThis, a company that partnered with Facebook in order to disseminate the Like and share buttons to third party websites.  They allege that AddThis’s widget enhanced Facebook’s transfer script, or their own programing code, by allowing third party websites to effectuate the transfer of content without needing to rely on Facebook’s code.

The most interesting part in the controversy is the indication that Facebook may have been aware of the existence of Van Der Meer’s patents. On a June 2012 patent application by Facebook, Van Der Meer’s ‘362 patent was listed as a prior art. Plaintiffs are claiming this either reinforced Facebook’s prior knowledge of the existing patents or at least made the company aware they were out there.

We will have to wait and see what the judge in Virginia determines (if Facebook even lets it get as far as litigation). In the meantime though, what is the value of the suit to begin with.  There is a widespread use of “like” button features throughout social media sites.  Websites like Tumblr, Instagram, Readit include features that allow people to “like” content on their sites—not to mention, YouTube goes as far as using a similar thumbs up symbol on its site. While the question involved in this new suit is more complex, involving software most of us cannot begin to grasp, can there really be a legal claim in something so overwhelmingly infused into the social media world.

The question, like in most cases, may come down to numbers.  To some extent, everyone knows Facebook makes a killing selling advertising space. The Like button is the key to their success.  By allowing them to track users interests, the company collects data on individuals and in turn sells targeted ad space based on it.  This ability to generate revenue was at the center of another recent lawsuit settled last summer.

In June, Facebook agreed to a settlement regarding the use of Sponsored Stories, ads using the name and photo of a Facebook friend who has clicked the like button for a product or company. Users were unaware to what extent the company used their likes for profit and it still remains to be seen what repercussion the settlement will have.  The settlement agreement requires that Facebook allow users to see what actions are used to generate advertisements. However, the effects of the settlement are ambiguous because they will require users to determine which settings control their Facebook usage.  Some estimated that giving users the option could cost Facebook as much as $103 million.

The frequency with which like and share functions are found across the web indicate that we relish the idea of announcing to the world our interests.  For a long time, we were unaware of how much companies could make from our actions.  However, my guess is that nothing will truly change and the profits will keep rolling in.  Rembrandt’s patent infringement claim could have resounding repercussions to Facebook’s amazingly successful revenue scheme.  In the end, it may just be another bleep in the longwinded Facebook litigation Wikipedia page that is bound to exist someday; but for now, we will wait with bated breath to see what the future of the Like button holds in store for us next.

Nicole Marimon

Nicole Marimon is a third year Fordham law student and IPLJ Online Editor. Her interest in IP comes from her love of books, her journalism background, and too much time spent with her technology savvy roommate. In her spare time, she cooks and spends time helping her dog establish an online presence. #nenushka