The Facebook TOS Controversy


Article Updated: See Below On Sunday, the Consumerist posted an article about Facebook’s revised terms of service (TOS) and a very notable change in how Facebook handles your content.

According to the article, Facebook removed a portion of the TOS that allowed users to terminate Facebook’s license to your uploaded work by simply removing it from the site (save archived copies). This kicked off a firestorm of controversy and resulted in not one, but two responses from Facebook clarifying their terms.

However, despite the clarifications, groups on Facebook continue to spring up protest the TOS changes and many users are still concerned about the TOS changes. As such, I wanted to take a few minutes today to talk about the changes and what they means as well as answer some of the more common questions that I’m seeing.

What Happened?

As with most companies, Facebook’s TOS has a clause in it that allows them to update it from time to time. These updates are fairly common as laws and technologies change. It is not uncommon for sites to change their TOS regularly as even trivial changes to the backend can change the rights they have to clear from their users.

As a part of most TOSs, at least for sites that host content at the direction of the user, the site clears the rights they need in the work in order to make their site work. This usually includes some form of non-exclusive copyright license to display, reproduce, edit, etc. Though the exact terms vary from site to site, they usually pertain to the function the site is supposed to serve.

However, typically these terms have some form of termination. You can end the site’s right to use your work by deleting it, closing your account, drafting a letter or taking some other step to opt out. In Facebook’s recent update, they removed that clause. Thus, the collection of rights that they claim to the items you send/upload through them remain with them even if you delete your account, at least within theory.

Facebook, in its TOS, gives itself “irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (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” the work. It is a very wide swath of rights that many would be right to worry about giving away perpetually.

Previously, one had been able to “expire” the license by simply removing the content. With the change, that element of the license is gone, making it unclear how one would prevent Facebook from legally using the work of its users in a way that they didn’t intend.

Why Did Facebook Do That?

According to Facebook’s second clarification, it was to make the TOS “more consistent with the behavior of the site”. Specifically Facebook cites situations such as messages, wall posts and other activities that take place on the service that may need to survive past when an account is terminated.

For example, according to Facebook, if you send a message to someone and later delete your account, that message should stay in that user’s inbox, Facebook points to email, which follows a very similar formula. In that case, if you delete your Gmail account, the messages you sent to your friends don’t disappear. However, since Facebook is wholly self-contained, it may need to secure those rights to continue storing and displaying those messages.

It is unclear at this time why Facebook didn’t either A) Begin with the current TOS or B) Clarify the new one to only impact the items that needed such preservation. After all, it seems that most users are primarily concerned about their photos, videos and personal information as opposed to their notes, messages, etc.

Is There Anything We Can Do?

According to the TOS, your privacy settings trump everything. If you set your images, videos, etc. to private, Facebook’s use of them will be limited to what you say can be done.

Theoretically, if you wanted to remove your account, you could set your privacy settings as high as possible, limiting everything to being viewed by just your friends, delete all of your friends and then delete your account. Though Facebook may be able to continue displaying those some things to your friends, depending on how it was sent/uploaded, they should not be able to use them publicly elsewhere. Anything you currently have available to the public at large could be used, at least legally, by Facebook even after you depart if you don’t change that setting.

What Does it Mean Realistically?

With TOSs, there is always a certain amount of base-covering involved. Just because a company gives itself the rights to do something in its TOS does not mean it will ever do so or that it is even likely. For example, many sites give themselves the rights to use a work for “promotion” of company. That doesn’t mean that videos uploaded will be turned into commercials.

If you trust Facebook to keep their promise not use your content in any way you don’t want, then it means very little. If you don’t trust Facebook or think you might not trust them in the future, than I would be wary about uploading anything to the site you aren’t comfortable licensing out in broad terms.

However, if you don’t trust Facebook, it might be worthwhile to evaluate if you want to use the service at all.

Do They Own User Works?

There has been a lot of confusion about the difference between a license and a copyright.

When you create a work for yourself, you become the copyright holder in that work. You, for the lack of a better term, “own” it. You do not cease being the copyright holder unless you actively sign over your copyright to it through a copyright transfer.

When you agree to a TOS, such as Facebook’s, you are granting the site a license to your work. You are giving them permission to do certain things with the work, such as display it, modify it, etc. The site needs those rights to do its desired function, share your work.

Giving a license to a work is NOT the same as giving up your copyright. Though licenses can be very broad, such as Facebook’s and even exclusive, which Facebook’s is not, with a license you are still the copyright holder of a work. The only thing that has changed is that the site can now use the work in ways that, without said permission, would be infringements.

For example, with the Facebook TOS, you can still put your images on other sites, sell them, make new works from them, etc. However, you can not try to sue Facebook for infringement because they didn’t pay a license fee or because they are using your work in your gallery. After all, you have given Facebook permission to do all of those things.

To make it clear, Facebook, nor any other TOS that I have seen (save the extremely misguided Fark license), tries to actually grant itself copyright ownership of the work. They are trying give themselves the permissions they need to do their job without fear of legal action. The question is whether they give themselves too many rights, how those rights can be revoked (if possible) and if the rights are exclusive (which they are only on the rarest of occasions).

It’s important to read TOSs carefully for that very reason.

How do other sites behave?

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.

This time last year, almost to the day, I started a series called TOS Showdown. Unfortunately, the feedback on it was so overwhelmingly negative that I stopped it after just one entry, namely the comparison of video sharing sites. It was a time-consuming project and didn’t seem to be worth the feedback I got.

However, in light of this “scandal” I am considering bringing it back and would love some ideas/nominations for sites to look at. Social networking ones, blog hosts and podcasting sites are good choices, but are there more?

A Thought on Applications

Facebook adds an extra challenge that hasn’t even been covered in any meaningful way.

Facebook has its own TOS, but so does nearly every single application and service that you use within it. Every time you add an application, whether it is a game, a slide show generator something else, you not only re-agree to Facebook’s TOS but to that application’s TOS.

There are countless apps on Facebook, each with their own terms. Even if Facebook is good natured in how it uses the rights it is granted by its users, who is to say these app creators will be? Also, who is to say that their terms aren’t far worse than anything Facebook has ever put in its TOS?

This is a big part of why I block nearly all app requests and only add one after I’ve had a chance to review it. I strongly encourage everyone to do the same.

Bottom Line

The bottom line though is that Facebook is only doing what it feels it has to in order to protect its legal interest. Does it claim a wide range of rights? Yes. Does it offer a clear way to revoke them? No. If you trust Facebook, this isn’t an issue at all. If you don’t, then it’s probably time to begin thinking about an exit strategy.

Personally, I think the odds of Facebook doing anything too uncouth with a user’s content is slim to none. Facebook simply has too much to lose if users begin to get upset enough to leave.

However, this doesn’t mean that I’m going to start uploading my new novel or masterpiece paintings any time soon (not that either exist). Facebook, as with all such sites, should be reserved for works you don’t care too much about the rights in as you’re going to have to give up a lot just to get the work online through them, even under the best of circumstances.

I urge caution when uploading to Facebook, but then again, I urge caution when uploading anywhere…

Update: Feb. 18

Facebook has announced that it has reverted back to its former TOS. According to a report on TechCrunch, the site is also working with its members, creating a group for its bill of rights, where it hopes to get feedback about future TOS changes.

Obviously this move should do a great deal to calm everyone down, even though Facebook has also promised a “substantial revision” to the TOS in the next version.

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