AboutFace-Book

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 Pajamas 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.

Zuckerberg and Facebook made an attempt just to “clarify” the change; in a blog entry, Zuckerberg said:

In reality, we wouldn’t share your information in a way you wouldn’t want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work. Our goal is to build great products and to communicate clearly to help people share more information in this trusted environment.

Of course, that didn’t much help, since the natural response of anyone who has dealt with lawyers, upon hearing the phrase “the trust you place in us,” is to grab their wallet with both hands and run for the door. The kerfluffle continued until just short of midnight last night, when Zuckerberg made another announcement on his blog:

A couple of weeks ago, we revised our terms of use hoping to clarify some parts for our users. Over the past couple of days, we received a lot of questions and comments about the changes and what they mean for people and their information. Based on this feedback, we have decided to return to our previous terms of use while we resolve the issues that people have raised.

With the kerfluffle over for the moment, it’s a good time to look at how it happened. First of all, while it’s the automatic response of some people on the Internet to immediately erupt napalm from all orifices, it doesn’t appear that this was a conscious attempt by Facebook to grab up the rights to the members’ content.

Facebook really did have a problem, since the existing TOS says they no longer have a license to publish your materials once you remove them from your account; the thing is, another user may have attached comments or tagged a photograph or something. They don’t want to delete those if you leave; they get enough trouble from users about things they remove for other TOS violations. I’m sure someone realized that by including the language about terminating the license “except for archived copies” they exposed themselves to some risk, so the lawyers rewrote the TOS.

The thing is, every lawyer is taught to assert all the rights you can get, and then let the other person argue you down. By asserting complete ownership, they were ensuring that there was no other unexpected case, and hey, if it worked out that Facebook owned a license to photographs by the next Ansel Adams or prose by the next Steven King, well, all the better. The mystique of the law is such that most clients, especially naive ones, don’t question what the attorneys are doing, and it’s a rare attorney who considers what actually makes sense for the business in terms of public reaction.

So now, after a week of furor, and at least one late night for Zuckerman, the TOS is back to the original text, and Zuckerman has made a commitment in his blog to revise the TOS so it will “reflect the principles I described yesterday around how people share and control their information, and it will be written clearly in language everyone can understand.” At what cost, in terms of Facebook’s reputation and in bad PR, it’s hard to guess.

This sort of thing is certain to happen again, though, if not to Facebook then to someone else. The whole structure of having terms of service that a user can agree to with a click, or even just by reading a Web site’s content, and that can be changed from moment to moment with consent assumed, is inherently asymmetrical: a hundred times of day, the user is assumed to consent to individual terms of service written by attorneys in legalese that requires a big specialized vocabulary to understand.

So ask yourself: what contracts have I signed today?