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Facebook haters: chill out. [UPDATED]

Posted on Feb 16, 2009 by billsimmon in Digital Culture, social media | 10 Comments

The internets are exploding today over news that Facebook has changed it’s Terms of Service to reflect their claim to worldwide, non-exclusive rights to any photos or videos that users upload, even after the users have deleted their FB accounts.

IANAL, but this means almost nothing and everyone needs to chill out. First of all, YouTube (and several other social networks) has had something very similar in its TOS agreement forever. It’s standard operating procedure for this sort of site. That by itself doesn’t make it innocuous, but it puts this sudden flare up of indignation into some perspective. Many of you FB users also have YouTube accounts and your content still felt like your content yesterday. Today is no different.

What does it mean?
Basically, FB is saying it retains the right to keep archival copies of your content on its servers even after you terminate your FB account, though importantly, it’s no longer saying that their rights to distribute your content expire after you delete your profile.

Why are they keeping your stuff?
They probably aren’t. Most language like this exists to cover their butts, legally. A lawyer probably told them to include this language to avoid potential legal kerfuffles, not to finagle some way to steal all of your photos and videos. FB doesn’t want to steal your photos. FB doesn’t care about your photos. FB only cares about protecting itself from liability.

What are your rights?
As with any TOS agreement, you cannot be compelled to give up your legal rights by clicking the “accept” button. If FB included language in the TOS stating that you grant them the authority to empty your bank account, and then they did it, they would still be stealing, despite your having clicked “accept.”

Egregious TOS agreements and EULAs are unfortunately common on the intertubes and thick, over-reaching legalese is mock-worthy, but you are not in any more danger of having your content stolen today than you were yesterday.

The EFF has a guide to EULAs, but it pertains more to license agreements for purchased wares than free social networks. You can search Boing Boing for relevant posts and learn a ton. When in doubt, send FB an email including the Reasonable Agreement EULA. That’ll show ‘em.

Again, IANAL, and I welcome any actual expert opinions on this.

UPDATE: CNET reports that Facebook has clarified its position on all of this, saying, in effect, “everyone chill out, Bill’s right.”

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10 Comments

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  1. Here is the actual language of the new TOS:

    “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.”

    I agree that this is covering their butts in a legal sense. I also agree that this language was in the TOS before, the new element is that of saving your content after you delete it.

    First of all, why would they need to save the content after it is deleted? What legal issues could this prevent? I could understand keeping it for 90 days or so just in case someone posted pictures of a robbery, rape, or other crime, but why should they be allowed to keep photos and videos indefinitely? Besides, it costs them a lot of money to store all this information on their servers, why would they do that on a permanent basis if they weren’t making any money off of it?

    Secondly, just because they are covering their butts legally doesn’t mean they are not going to sell them as stock photography to make some extra cash. I HAD professional portrait pictures (see here: http://www.swichkow.com) on Facebook until today. These were on my profile so prospective employers could see my work on more than just my website. Should I leave these professional pictures up and just “trust” that they aren’t going to sell them for profit?

    In conclusion, I see no reason why they implemented the new provisions into their TOS and I see no other social networking sites that claim such power over the content posted on their site.

    http://www.swichkow.com/Blog
    http://www.twitter.com/swichi293

  2. Thanks for this post – I was trying to articulate this morning why I’m *not* so freaked out by this TOS hubbub, and you’ve made some very clear points.

  3. On February 16, 2009, evening said:

    sent the original article and your initial twitter response to a friend whose husband is a lawyer (and on facebook), and he isn’t concerned either. standard language, yadda yadda, enforcement would probably depend on each situation, yadda yadda.

  4. On February 16, 2009, billsimmon said:

    Brian,

    YouTube’s TOS are linked in my post. Read them and you’ll find very similar language.

    You asked what possible legal situation could arise. I’m not FB’s lawyer so I can’t necessarily think of any either, but that doesn’t mean they haven’t. I found some possibilities reading comments out there on the web though. Here’s one:

    “the basic idea is that things you upload may end up residing on servers outside of Facebook’s direct control. These broad rights make it so that you can’t sue Facebook for some cached content on some other server”

    I don’t know if that’s their reasoning or not, I’m just pointing out that scenarios can exist that you and I aren’t thinking of.

    Your other point about FB selling your photos as stock photos is nothing you need to worry about. The agreement grants them the right to repurpose your work, but you still *own* the work. Their non-exclusive rights aren’t transferable. Here’s where I would really defer to a lawyer, but in order for FB to sell your photos as stock images, they would have to in turn enter into an agreement with whoever they were selling your work to, granting *them* the right to use your work. Nothing in this TOS grants them that ability that I can see. They can use your images for their own promotional purposes, but they can’t transfer their rights to anyone else w/o your approval.

  5. I think the blogosphere is alight with this news as everyone is worried over the rights to their words… their content. Or – say a poet posts their poems on the site, then gets famous, and dies. Can FB publish a book – use the poets now famous poem in an ad and not have to pay for it?

    I posted something about it to remind people that while Facebook is a cool tool to update the status of your breakfast, it shouldn’t be an avenue to publish your content.

    That is what WordPress is for!

  6. On February 16, 2009, billsimmon said:

    Thanks for commenting, Michael. With respect, yours is precisely the attitude I was hoping to challenge with my post. To wit:

    say a poet posts their poems on the site, then gets famous, and dies. Can FB publish a book – use the poets now famous poem in an ad and not have to pay for it?

    No on one, and maybe, but probably no on two. Copyright in the US currently extends for the period of the author’s life plus 100 years, so for 100 years after your poet died, her estate would *own* the poem and have final say on any book sales. Taking an extreme view, FB could attempt to use the poem (provided it was uploaded to FB at some point by the author or her designates) in a FB advertisement and not pay the poet’s estate, but they would certainly have a legal challenge on their hands as this is obviously not in the spirit of the agreement.

    More importantly, the vast majority of content on FB doesn’t meet this test in that it’s mostly noise that is of interest to a very select group of people. That’s a nice way of saying, “get over yourself, nobody cares about your poetry/etchings/photographs/wood carvings/short films/rock band.” I pray to God that FB decides my content is so popular it’s worth stealing. PLEASE let me be so lucky!

    Finally, FB is a totally appropriate place to publish your content. Why keep any eyeballs from seeing your stuff? You want as many people looking at your art as possible. Publish to wordpress, facebook, flickr, youtube, vimeo, twitter…

  7. Bill, isn’t it “life of creator plus 70 years” for works created after 1/1/1978?

    IANL (my variant: “I ain’t no lawyer”) either.

  8. On February 17, 2009, billsimmon said:

    Mark, yeah, but it’s more complicated than that. Wikipedia says:

    The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978 was increased by 20 years to a total of 95 years from their publication date.

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