Wednesday, February 18, 2009

Victoria Strauss -- Facebook TOS Controversy

The blogosphere and the Twitterverse have been abuzz over the past few days with news of a change in the Terms of Service at Facebook. The old TOS ensured that the limited license that Facebook users grant to the company expired when user content was removed from the site. The new TOS eliminated that provision, making the license, in effect, perpetual.

The ensuing uproar (including some semi-hysterical misinterpretation, such as the notion that Facebook was claiming copyright on content), has been such that Facebook has now reversed its position, returning to the old TOS and inviting users to contribute ideas for a new revision.

The issues that caused the uproar are presented in detail in this post from the excellent Plagiarism Today blog. The author also notes something that I think is important:

I’ve noticed over the years that sites have become more and more aggressive about giving themselves rights in their TOS. Users, for the most part, haven’t noticed as the TOSs have grown in length and given the various sites new rights. This is especially true of all “user-generated content” sites.

Facebook’s license may be worrisome but it is far from alone and, in general, there has been little public interest in doing anything about it.


Below is Facebook's license language.

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

As pointed out above, as sweeping as this seems, it's not unusual. Compare it, for instance, with the license in the Terms of Use for Associated Content (see Clause 4A). In fact, Facebook's license is better than some I've seen, in that it's restricted to the performance and promotion of the Facebook service itself ("on or in connection with the Site or the promotion thereof"), rather than extended to any purpose whatsoever. When assessing TOS, this kind of restriction is something to look for.

The moral of this story: always, always read the fine print. Know what you're getting into, and if language like that quoted above disturbs you, don't use the site.

5 comments:

Ulysses said...

All of which makes me wonder, Victoria, how do blog services (like this one) measure up in terms of content ownership?

Jill Elaine Hughes said...

I think perhaps Facebook probably started feeling heat from companies that use Facebook for paid advertising (via the "Become a Fan" function) as well as authors/celebrities who promote their already copyrighted books, movies, TV shows, etc. on Facebook. I know I post my book covers on Facebook as a promotional tool, but my publisher already owns copyright on those covers before they ever end up on Facebook. Facebook can't exactly claim ownership on other people's/institutions' copyrighted material, so I'm not surprised they backed down on this.

I think Facebook is having a problem turning a profit, and is grasping at straws at ways to generate revenue.

Ben said...

@Ulysses: Blogger is owned by Google, which generally has a Pretty Good Idea about how to manage user content. Aside from that brief controversy involving the TOS of Google Chrome (which Google quickly reworked), Google doesn't try to claim ownership of anyone's content. The Blogger TOS are here.

I've found this controversy particularly disturbing--not so much regarding Facebook itself, but with the fact that people are now scrutinizing the TOS of other services and nitpicking those as well.

Was Facebook overreaching? Yes, but I understand why. Their lawyers pushed for that language because that's what their years in law school and experience told them would protect Facebook from losing costly and bitter lawsuits. I don't blame Facebook for protecting its own interests.

This is part of a larger problem endemic to the nature of content on the Internet itself. Most countries have horrifically outdated copyright laws (hey, in Canada, using a VCR to record a TV show is technically illegal--don't even get me started about DVR). The Internet poses a challenge when it comes to interpreting what exactly constitutes "infringement" of one's copyright. Technically, not only does Facebook store your data, but it keeps multiple copies of your data. The dearth of legal precedents regarding copyright and the Internet means that lawyers have to resort to tactics like ambiguous or overreaching TOS in order to protect their companies.

While the reaction to Facebook's move is understandable, I think it's a bit much. As with any big news story, it attracted a fair number of people who know nothing about these issues. I'm not saying one has to be a legal expert, but one should at least do research. As Bailey notes in that Plagiarism Today article, this isn't a sudden or new practice, and the fact that people are only now catching on is disturbing.

I agree that vigilance is necessary. Also, this is another reason why only using social networking sites like Facebook to promote oneself won't do--ultimately, having one's own dedicated website gives one a place to post any content one wants to distribute.

MisterChris said...

I think the whole bru-ha-ha (sp) over the Facebook TOS is ludicrous.

When a person on FB posts a picture of themselves, FB has to have the right to produce copies of that picture on anyone's screen that browses to it - if it is a profile picture, they have to modify it - reduce size and crop, to fit the size of a profile pic.

The text you place in a note, like a song (I've posted lyrics to several of my songs this way) have to be able to be distributed to others who can see your note.

If you send it in a message, the other person will always have the message, even if you terminate your account.

FB is only protecting their interests. I burst into a cold sweat when I read the TOS for Soundclick, but they at least explained why they read that way.

Same went for Garageband, and many other services. (I expect even Blogger!)

I think what happens on FB today is pretty much what's in those TOS, they are simply clarifying legally what's going on so you cannot sue.

What a litigious society we live in these days. People who are so interested in suing should look at the cars their lawyers drive - who gets the money from the suit?

Disclaimer: By reading this post you agree to be bound by the following irrevocable, non-transferable, non-exclusive terms of service:

You (the reader) agree not to be offended or vindictive against me (the writer) or my survivors, acquaintances, or assigns. You agree to not sue for any reason whatsoever, even if I used one of the letters of the alphabet that you have copyrighted, or a font that you have patented. In fact, you agree to have a nice day if you read this far...

crazyloko said...
This comment has been removed by a blog administrator.