> What these kinds of platform agreements usually say is that you, the licensor, agree that you are fully representing that you can issue that license, and that any infringement is thus your fault and not the platform-licensee’s.

I know the comment is brief, but it's important to understand what it means when the infringement is 'your fault'.

If it's B's fault that it caused A to infringe on the copyright license of C, then that would be handled by B indemnifying A against a charge from C. C can still sue A, C can still win a suit against A, A would then utilize the contract with B to get reimbursed from B.

If B is small and can't afford to reimburse A, that's A's problem. If B goes out of business, that's A's problem.

In my field, we require this indemnification fairly frequently as we distribute content created by others where it's impossible to fully guarantee that content leaves us with no liability, in a reasonable timeframe of distribution.

We have many processes that give us a best effort to prevent us from distributing content that we would be financially liable for. We have processes where we let things go which are gray area, but the client has posted a bond with us and signed an indemnification agreement sufficient to cover the potential fine we may face if the content was an issue. Or we reject the same content from others who don't have that signed agreement and haven't posted that same bond. Sometimes we sign an agreement without a bond because we've had decades of experience with the client and the number of violations is small enough that we would eat the cost.

I wish that there were well defined, common sense limits on indemnification and liability for misrepresentations.

Compare both to bona fide insurance markets. If I buy insurance, there is a defined maximum payment. And if I defraud the insurer, I get in trouble. And the insurer knows that they’re getting into, and they understand the risks and get compensated appropriately.

When some random consumer contract states that the consumer indemnifies the service provider, the consumer usually has no idea what this means and probably literally never sees the contract text. There is rarely a limit specified and, if there is, it’s probably basically a joke. And the benefit to the consumer rarely has anything to do with the risk (in fact, often the consumer pays and supposedly indemnifies the party they’re paying).

And then we get to representations. In a real B2B contract negotiated by lawyers both sides, the representations are generally relevant, everyone does them, and the replying party is expected to do due diligence. But in contracts like this Meta thing, to the extent that there is a representation that the publisher can issue a license:

a) That representation has nothing to do with the actual reason the publisher is entering into a relationship with Meta (the customer probably just wants to run ads or use business messaging)

b) The customer is extremely unlikely to have had a lawyer review the contract and Meta would not allow any good faith negotiation anyway.

c) Meta is not doing due diligence.

I feel like some combination of a, b and c should invalidate Meta’s right to rely on the representations and, in an ideal world, would even serve as evidence of bad faith on Meta’s part and serve to shift additional liability to Meta.