Ever since Facebook launched their updated Terms of Service (TOS) roughly two weeks ago the world has been turned upside down. The very vocal minority has been pretty actively articulating their opinion against the most recent modifications, and for very good reason – Facebook seems to think they now own your data forever!
It seems Zuckerberg has allowed the lawyers to make changes to the TOS without properly thinking through the ramifications of the adjustments and how they would affect the community. In short, anything and everything you do on, or submit to, Facebook is perpetually owned by Facebook thanks to the license you grant the site as outlined in their TOS. Through your mere use of the site you have [possibly] unknowingly granted Facebook such rights to your data.
Do you think this does not sound right? Do you find Facebook to be a truly trustworthy company who would never do your data any harm?
The following is an excerpt from the updated TOS specifically addressing your need to grant Facebook a license to display data you provide to the service:
You are solely responsible for the User Content that you Post on or through the Facebook Service. You hereby grant Facebook an 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 (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.
That entire paragraph would be fine if the following statement had not been removed from the updated TOS:
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.
There is no longer a provision in the TOS detailing the terms under which you may remove your content from Facebook. This is not only disturbing on the most obvious level, but is downright criminal. In order to use Facebook, you must now provide the company with an irrevocable, perpetual license to use your data in just about any manner humanly and non-humanly possible!
One slightly peculiar aspect of the change is the following first statement in the License section of the TOS:
You are solely responsible for the User Content that you Post on or through the Facebook Service.
Somehow you are solely responsible for the content you post on or through Facebook even though you must grant the company a license to use said data in whatever format they desire – forever. This one statement does not even logically fit in with the latter statements. Although I understand what point they are attempting to make, it seems muddled thanks to their newfound, perpetual license to do whatever-the-hell they want with your data.
Yes, your data, on their service, but your data nonetheless! I can hear the cries of the, “if you don’t want them using your data, don’t use their service,” crowd! Oh, cry me a river, right?
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information that you provide to Facebook (“Submissions”), are non-confidential and non-proprietary. Facebook will be entitled to the unrestricted use of any such Submission for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Apparently if you ask Facebook for help, and they decide to use your case as a study or in some marketing materials which the company gets paid for, guess what. You get zilch. Such statements are fairly standard practice, but no less comforting for the unsuspecting who fail to painstakingly read each and every line of the TOS they “agree” to.
The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.
Should you cancel your account, Facebook is still allowed to use your content in any manner outlined within the TOS. Even if your cancellation is because you do not want Facebook using your data, they are still well within their existing legal rights to continue to use your user data merely because of this single little clause. How convenient!
Except as set forth in the paragraph below, you agree that all claims and disputes between you and Facebook that arise out of or relate in any way to the Terms or your use of the Facebook Service will be resolved either by (a) binding arbitration by a single arbitrator in Santa Clara County, California or (b) binding non-appearance based arbitration conducted by telephone, online or based solely on written submission. Such arbitration will be administered by Judicial Arbitration and Mediation Services (“JAMS”) (see www.jamsadr.com) pursuant to its Comprehensive Arbitration Rules. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction.
Thinking about suing Facebook because of a dispute arising from the manner in which they handled your user data? Think again. By agreeing to the Facebook TOS, you have implicitly agreed to binding arbitration to resolve your disagreement. Oh, and guess what – you must use a single arbitrator in Santa Clara County, California, regardless of whether you live in Arkansas, Maine, Florida, Jamaica, China or wherever.
What does it all mean?
So after all this, you can get a sense for why folks are pretty upset. The latter paragraphs remain largely unchanged – the largest disputes are with the updates to the licensing and the rights that survive termination. It should be obvious why people are upset – this is your data, you own it and Facebook should not be allowed to use it however they see fit.
Some rights are crucial to allow Facebook to display your user data on the Facebook web site and through the various Facebook Connect mechanisms offered for remotely accessing data stored on the service. These prerequisite to posture for these situations is completely understandable, but at the cost of the goodwill Facebook is currently operating under? I am quite certain that most rational people are clearly capable of comprehending these requirements if they are properly enumerated in the TOS.
My experience with these matters tells me the modifications were made by a bunch of scared lawyers who are concerned for the company largely due to Facebook Connect implications. These suits get paid to protect the service, and generally do not consider the community ramifications of such TOS alterations.
What the lawyers have written in to the current TOS essentially allows for a number of whacky but allowable scenarios.
- You upload pictures of your trip to India. Facebook decides to license pictures of India submitted to the site to a third-party after charging a sub-licensing fee. This transaction is between Facebook and the third-party and you will not be compensated.
- You syndicate your highly popular blog entries to Facebook in an attempt to increase your audience. Facebook determines your content is valuable and licenses it to a third-party for publication in print after charging a sub-licensing fee. This transaction is between Facebook and the third-party and you will not be compensated.
- You upload a video of your cute cat doing some cute cat things. Facebook has an opportunity to get paid to license such videos to a major TV network. This transaction is between Facebook and the third-party and you will not be compensated.
These situations are entirely plausible thanks to the modified wording in the updated TOS. Think I am being paranoid? Read the similar thoughts others have on this very topic.
Facebook’s weak response.
After allowing the blood to boil for a couple weeks, Facebook has finally issued a statement on the TOS modifications. Rather than allay our fears, Facebook has basically said, trust us because we’re not evil. No really, we’re not. I promise, we are not evil!
Our philosophy is that people own their information and control who they share it with. When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this license, we couldn’t help people share that information.
If Facebook’s philosophy is that people own their own data and control who they share it with, why is that sentiment not properly represented in the TOS?
One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created—one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message. We think this is the right way for Facebook to work, and it is consistent with how other services like email work. One of the reasons we updated our terms was to make this more clear.
Actually, the updated TOS is far from being more clear – it reads more like muddy water now. If the intent is to protect user data which still resides on the server after an account is deleted, then why not properly account for that in the overly legal wording of the document? It is quite easy to stipulate the few occasions where this is necessary, without forcing users to grant Facebook a license to do whatever-they-want, however-they-want with our user data.
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.
Again, trust us because we’re not evil. Seriously, we’re not. We need you, you need us, so trust our trustworthy souls.
If Facebook is not evil, and has no evil intentions, why has the “you can remove your data” clause been removed from the TOS? The mere removal of that single statement gives the perception that nefarious activities are planned. Plain and simple.
Conclusion
In my experience dealing with similar matters at deviantART I find it extremely valuable to engage the community early on in the process. It is imperative to get the proper word out before the conspiracy theories take hold like wildfire. In this case, Facebook failed miserably, and has allowed negative theories to perpetuate which in turn have shed a damaging light on the company.
Do I believe Facebook intends to use our user data as enumerated above? No, I really believe their desire is to ensure the site remains a viable safe haven for social networking to thrive. The most compelling reason I can find for the change has to do with Facebook Connect and the implications of how our user data is used by that specific service. Surely Facebook is trying to use generalized language to afford the company the necessary rights, but at what cost to their user base?
The TOS is in severe disarray and needs retooling to be less vague about what can and can not be done with user data. I urge people to use caution with their uploads until the TOS is updated to reflect a better depiction of what the company will do with our data.
Do I expect such modifications and clarifications anytime soon? Sure – as much as I expect to be visiting our Lunar base by the months end.
Will that stop me from using Facebook? Ultimately it will not, but you can rest assured I plan to be far more cautious of my Facebook activities from here on out!
One thing I think that is important to remember is that a thriving site with a massive userbase and copious amounts of new join-ups everyday will always be much more fiscally rewarding than any licensing fees they could charge and in effect turn their userbase away. That's a lesson myspace and youtube taught us.. there's a really big lot of money in it.
February 17, 2009 @ 22:34
Completely agreed. I think most folks would agree with that sentiment. This is why it's important for the TOS to reflect such.
It's not really that hard. The problem with Facebook, as with deviantART back in the day, is they acted too late – they allowed the negativity to perpetuate and it is going to bite them in the ass unless they do something positive to course correct this mistake.
February 17, 2009 @ 22:39
That's pretty much the way the internet has always been though – because this whole social networking thing is so new and so mysterious to such a broad userbase, there's always going to be the seemier underside to it where everything is evil and everyone is trying to steal your shit without you being able to do anything about it. That's very much what I found with dA when the first rewrite happened, there was a massive notion of this whole evil monopoly effect run by shadowy figures with little more than spades of cruel intention.
From here on, I think Facebook need to choose their wording very carefully. Leaving it so open-ended, while yes, it does protect them in terms of ability to be litigated, harms their relationship with the userbase that sustains them. Perhaps there needs to be an amendment made to reflect that anything content-based can only be reproduced and displayed by the site on certain services and that all content cannot be used for revenue generation.
How'd you get around it with the introduction of dA Mobile in the end of it all anyway? I stopped paying attention eventually because it all became clear like mud with how much bullshit everyone was speaking.
February 18, 2009 @ 16:07
Haha, this article made me laugh (and not only because of the title).
I find it quite hilarious that facebook wants to claim full rights of everything, even when you leave facebook. This is just another reason why you should always atleast read a small bit of a TOS when signing up for a website or service.
February 18, 2009 @ 01:51
Indeed, everyone should read the small print but as we all know people rarely do. It takes too much time and we're usually in a hurry to complete the sign-in process. At least this was caught early, so it should be interesting to see how it turns out in the end,
February 18, 2009 @ 08:46
Good post, concise and filled with clarity.
It certainly reminds me of the dA fiasco with their TOS.
February 18, 2009 @ 09:14
That's why I hardly upload pictures on FB. And if I do they are snapshots, so not commercially viable.
And I also remember the ToS fiasco on dA and that is still not fully resolved (and I'm sure dA doesn't have intention to).
To me the size of online apps like these is that for every user has a problem with something there's a million that don't care and they use that leverage to whatever they please.
February 18, 2009 @ 09:46
The ToS fiasco on deviantART has never fully been reconciled – the whole thing was “finished” thanks to smoke and mirrors. This is not to say that DA ever intended to do harm to the users, because I honestly do not believe they desire such a perception, but that the document still needs some major revisions before it could be considered completely helpful.
February 18, 2009 @ 21:04
I'm sure that dA didn't mean harm, same for FB. But the legal loopholes are in place for them to “abuse” the users and that is not right. Glad that FB is reacting so quickly.
February 18, 2009 @ 23:10
Completely agreed. And with those legal loopholes in place, in the event the companies ever got bought by someone with evil intentions, the mechanisms would exist to allow them to screw users over. So yeah, indeed, it is a good thing to see Facebook reacting and listening to their frustrated user base.
February 18, 2009 @ 23:15
I think a good rule of thumb is to just presume that anything you put on the internet is out there forever and ever regardless if you want it there or not. Follow that logic, and no TOS will catch you off guard.
February 18, 2009 @ 21:29
I do not disagree with your basic thoughts, however that was not the issue in this instance. The Facebook TOS issue was far deeper and more important than what may be seen at face value.
February 18, 2009 @ 21:54
How come this seems so familiar…
Wait a sec if I'm not mistaken did this not happen with DeviantART several years back? It's like “here submit your content” thanks a bunch, now we will do whatever we want with it because it's ours now. Thanks for visiting come again.
Personally I had put some images of paintings I've done for friends and families to see (I've limited my photos and images to friends and family only) and before this recent change figured it was a safe way of exhibiting work I've been doing while at university.
It's scary because these websites can do whatever they want with your media. I mean sure we all know what images are put up on the internet are easily up for grabs and you don't know who is saving them to their computers… but it's not as frightening as when a company or site lays a claim to your work, your image and your information for that matter. Basically giving you no legal right to do anything to them if they choose to sell your work or give your work and images out to other companies I bet to use for who knows what.
That's next to the fact that these networking places more then likely are passing on all your given info out to marketing teams so they can reach you better and advertise directly to your preferences. They got to make money somehow I suppose.
Personally I am going to have to take down any images I don't want them to own now apparently. I don't think I even got a new notice or anything about this new policy within the last weeks as well. It's good to see someone putting this information up and clarifying it for people.
Again said to see a website go out and do this to it's users. It's a slap in the face. Much like the slap in the fact I got from dA when they had this similar policy… which I'm not even sure exactly if that's been revised and such.
February 25, 2009 @ 14:11