Thursday, February 19, 2009

Facebook Terms of Use

Facebook rewrote their terms at the beginning of this month. The changes to the terms were reported in Consumerist magazine, and an uproar was raised. Facebook reverted to their old terms, stating the fears everyone had were unfounded, and they would revise the new terms into less legalese. Also that they wouldn't change their terms again without informing its users. (It was announced on Feb 4th on the Facebook Blog, but they promise to go further than that next time.)

I thought I would go over the terms that scared everyone, and the old terms, and share my interpretation. Because my interpretation differs from many. I am not a lawyer, and my interpretation could be wrong. But I went over the language carefully. I agree the legalese can be lessened dramatically, but the terms released at the beginning of the month seem BETTER to me than the previous terms. I will explain why I feel this way, and why I look forward to the less legalistic version they produce in the hopefully near future.

I will deal with the terms line by line.

"You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to

Yes, all of this is necessary. Post something on Facebook, and Facebook needs the right to display it to those you have marked as your 'Friend'. They need the right to transfer this right in case they sell Facebook to new owers. It needs to be worldwide so Friends of yours in Paris, Toyko, and Great Britain can all legally read it. It also needs to be perpetual, as Facebook explained, if you post something on a Friends 'wall' and then you delete your account, and your Friend's account is still there, it should remain on your Friend's wall. If they didn't have the world 'perpetual' there, you could sue them once you deleted your account and your words remained on your Friend's wall. In today's legalistic society, you would likely win. Facebook doesn't want that.

(a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you

This seems like a lot. But there isn't a consensus on how to use traditional copyright terms with respect to the internet. You can upload videos to Facebook, and when a friend plays that video, that is a 'public performance' and it's 'streaming' Photos you upload can be tagged with the names of friends who appear in that photo. Tagging the photo might be considered modifying, editing, adapting, or creating derivative works. So, yes, Facebook probably needs all those rights.

I'll grant they can and should make it clear that they are only claiming those rights for use within the Facebook website, and they claim no rights to use the content off Facebook.

It's hard to compare the terms to those on other sites which don't allow such a varied amount of actions. Sure, Twitter's terms are extremely simple, but all you can do is post text 140 characters in length. No images, no video, no tagging. There are some websites that allow you to upload images or video, but they don't have the same social networking capabilities. Apples need to be compared to apples.

(i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or

* The 'or promotion thereof' here appears to refer to the User Content, not something they're doing with your user content. Few of us are promoting Facebook with their user content, so only 'on or in connection with the Facebook Service' applies to us.

* There is no public/everyone privacy settings. When you are logged into your account, you can click on the Settings link at the top of the screen and change your privacy settings. The default for most Facebook Applications is "Friends and Network." You probably don't want it set this way. It means anyone in your Network can view your material. Your Network is your College, or Region which you signed up under. My network is St. Louis, Missouri. I don't want all Facebook users in St. Louis to be able to view everything. (That's how potential employers, etc find stuff you don't want them to find.) Set it to "Friends Only". That way only your specified Friends will be able to see what you put on Facebook.

(ii) enable a user to Post, including by offering a Share Link on your website and

* a "Share Link' is Facebook terminology for a widget they allow websites (such as newspapers or blogs) to put on content that allow readers to directly post that content to their Facebook pages.

A link you put in a status update to a page on your website or blog is *not* a 'share link'. It doesn't "enable a user to Post" does it? It only enables them to follow the link and read it off-Facebook. To find out how to become what Facebook calls a "Share Partner" follow the link above.

(b) to use your name, likeness and image for any purpose, including commercial or advertising,

* OK. I don't like them being able to use my name, image or likeness for commercial or advertising purposes. But I believe all user content you upload is still restricted by your privacy settings.

Some, such as Fox News, reported that the Terms gave Facebook permission to use the photo you uploaded of your kids for advertising...I don't see where it does.

The image of your children doesn't fall under the category "your name, likeness, or image.' I think the only image they'd be legally able to use would be your profile picture, and I'm not even sure they'd be able to use that, because the restriction to your privacy settings should still apply.

each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof."

* this "or the promotion thereof' applies I think to their actions, but still within your privacy settings.

"The following sections will survive any termination of your use of the Facebook Service..." (most sections)

As I covered with the word 'perpetual' at the top of the Terms, it is necessary, unless all comments you post anywhere on the site are supposed to be deleted once your account is deleted. They could go that route, but the comparison that Facebook makes in their blog is apt. The email you send your friends doesn't disappear when you want it to. If you don't want your friends to have an email you send them forever, you shouldn't send it to them in the first place.

Old TermsOfUse – and current until Facebook revises the New one

(I'm not going to break this can be compared to what is above)

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.

* The Consumerist in their article said the only difference between the Old and the New terms was the removal of the 'Termination Clause." Since today's newspapers report what they read from other news sources without double checking the facts, this statement was repeated by most news sources. A simple comparison shows that this was at best sloppy reporting. [I am assuming that Facebook's statement that they have reverted to the Old Terms is correct. The above is what is there now.]

The most important difference, from my perspective, is the *ADDITION* of the privacy settings language. It's not there in the old terms. It's not there in what is the current terms until they come back with the revision of the new terms.

So many Facebook users seem to be breathing a sigh of relief about the return to the Old Terms, and the Old Terms have less protection than the New Terms did. Under the Old Terms they really could share what you posted with Anyone. (That probably wasn't their intent, but they could have legally.) They can't do that with the New Terms. They can only share it with your Friends. (Or your Network, if you allow them to share it with your Network, and by default everyone does. If you haven't, you really should check your settings and decide which parts of Facebook should be visible to your Network and which parts shouldn't be.)

Anyone who prefers the Old Terms, raise their hand. (My hand isn't raised.)

Yes, the heavy legalese isn't necessary. But I look forward to them releasing their New Terms in language everyone understands. They will be a marked improvement over what we had before, and have now.

As to not announcing to the Facebook Community about the change in terms beyond posting it on their blog? Many people are used to Software programs asking you to approve new Terms of Service every time the software is updated. There isn't such precedence with websites. I agree it's a good idea, but I don't think Facebook was behind the curve here, and one of few websites that was willing to post a change in Terms without directly notifying all users. I think if they follow their promise, they will be one of the few that DO. (And, again, it will be a good thing to take a leadership role here.)


Brian said...

Good post. I sort of posted about this today on my blog, but I didn't go into a lot of detail. You seemed to hit it right on the head. Some people are overreacting due to a common "Terms of Use" that many sites use. Don't post what you don't want to share is what it comes down to.

Anonymous said...

Sadly, most people would not have looked closely enough to notice the change in Facebook's Terms of Service... looks them social networkers are doing a good job of looking out for each other

Craig Manson said...

One of the most cogent posts I've read on the topic, John. Thanks!