What lies behind the furor surrounding Facebook's ever-changing terms of service.
February 19, 2009 - 12:11 am
Any time you deal with the legal system, there are two groups who can hurt you: their lawyers and your lawyers.
Mark Zuckerberg, founder and CEO of Facebook, discovered that this month. Facebook, like many other Web sites, has a legal description of what rights you grant them by using their system, and what rights they agree to with you as a user, which is called the terms of service (TOS). (You can find the PJ Media version here.)
The terms of service for any of these social sites are a little complicated, because under copyright law since the Berne Convention, a creator has an automatic copyright on all content they create. Without some other contract, you could potentially post something to Facebook and then claim royalties or damages because Facebook published it, and someone who thought they’d been damaged somehow by something a user said could sue Facebook. (Not that it hasn’t been tried anyway.) So Facebook’s TOS included a section on “User Content Posted on Site” that basically says, among other things, that when you post content on the Facebook site, you grant Facebook a license to publish that content in any way and in any form they like, and that if you delete that content, you terminate that license, although they can keep backup copies.
On February 4, Facebook made a “small change” in its terms of service: it took out the part about terminating the license when you delete the content.
The story first showed up on the Consumerist blog. As Consumerist delicately put it:
Facebook’s terms of service (TOS) used to say that when you closed an account on their network, any rights they claimed to the original content you uploaded would expire. Not anymore.
Now, anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later. Want to close your account? Good for you, but Facebook still has the right to do whatever it wants with your old content. They can even sublicense it if they want.
Of course, there was no prior notice of the change. In fact, another part of the TOS says that you agree they can change the TOS at any time, without notice, and you agree to the change by using the service. (Suzie White, corporate counsel at Facebook, did mention it on the Facebook blog, but without any details.)
Here’s the problem: a lot of people use Facebook to advertise their work. Photographers, for example, may put some sample pictures up on the site to attract customers. No one imagines that you aren’t exposing yourself to being pirated by doing that, a right click and anyone can save an image copy. But the TOS change goes further than that: with that change, it appears to say that Facebook can use that content, or even resell it.
As you can imagine, once this story got around, there was an exquisite — and justified — kerfluffle over it. It quickly escaped from the blogs and into the national press, and a Facebook group called People Against the new Terms of Service accumulated over 60,000 members in a matter of hours.