Rights, Wrongs and Facebook

Before posting this I checked Facebook’s ToS again, and well, it’s changed (or more likely reverted to their prior ToS as they work on revising the language). However, I am posting this anyway, damnit. It’s long, and I am not tossing it. I’ll add a paragraph or two at the end of the post, making it even longer.

Note: I am not a lawyer. But I have grown up among lawyers. I have also taken one Media Law college course (though the knowledge gained in that course is now 14 years old.)

From Facebook’s Terms of Service (with added paragraph breaks for clarity)

“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.”

And

“The following sections will survive any termination of your use of the Facebook Service” — after which follows a list of most of the
sections on the Terms of Service page. (This paragraph is about a week or two old. The other paragraph isn’t new.)

FoxNews says

In other words, while it doesn’t actually own your photos, scribblings and status updates — you do — Facebook can do whatever it wants with it, whenever it wants, in order to promote itself or create or sell ads.

Theoretically, it can even “license” a picture of your kids for use in a third party’s ad campaign.

Not really, as I read it. There’s a section (a) and a section (b). [Which is why I added the line breaks above – to emphasize this.] The “any purpose, including commercial or advertising” applies only to section (b). The idea that Facebook can use your name or image for advertising may worry some. However, the terms don’t allow them to use your “User Content” for advertising.
The end of the paragraph seems to say that section(a) applies to ‘promotion thereof’ but it’s still “subject to your privacy settings.”

So, what are Facebook Privacy Settings?

You can currently choose between
Friends only
Friends and Networks (default for most Facebook applications)
Friends of Friends

There is no Public/Everyone setting. If you’re not signed into Facebook, there is very little content you will see on anyone’s page.
If you are signed in, but aren’t in a person’s network or one of their friends, you will still see close to nothing.

Facebook is made up of many networks, each based around a workplace, region, high school or college.” Everyone chooses a network when they sign up. For example, my network is “St. Louis.” Facebook terms don’t allow them to share your content with anyone after you terminate your account you weren’t already sharing it with, unless someone new joins the network, or becomes a friend of one of your friends. You probably don’t want everyone in your geographical region to have access to your content. so you may want to set your privacy on all parts of Facebook to Friends Only.

Your name, image or likeness is another matter. You may find that bothersome, you may not. But that doesn’t apply to the picture you uploaded of your kids. That’s part of User Content. The ‘image or likeness’ in ‘name, image or likeness’ in all likelihood refers only to the one photo you have set as your profile image. I’d be interested in a Facebook explanation of why they need rights to use my name, image and likeness in their advertising, but it’s the only thing their ToS claims a right to use in their advertising.

Why does Facebook want perpetual rights to your content?

Facebook explains it fairly well

If User X writes something on User Y’s ‘Facebook wall’, when User X terminates their account, what they wrote on User Y’s wall will
remain. If Facebook didn’t claim perpetual rights, User X theoretically could sue Facebook after they terminated their account if their content remained on User Y’s wall. Say “no one would ever do that” all you like, in today’s litigious society someone would think of doing it. And they would win if Facebook didn’t have this paragraph in their TOS.

Some fellow bloggers have suggested the Facebook TOS is a good reason you should host your content solely on your own website. There is at least one argument against this. One argument suggesting that under some circumstances it is actually better to post stuff on Facebook than on your own website.

If you have your privacy setting to Friends Only – you might be able to argue that all your content remains ‘unpublished.’ If you have any hope of submitting your content later to a magazine or other publisher for payment, you don’t want to publish it on a publicly accessible website. Most magazines are primarily interested in unpublished material. They want to have “First North American Rights” (or if you are in another country “First other section of the world Rights”) They may even want “First Worldwide Rights”. But both of these disappear once the content appears on a publicly accessible website. You have limited your ability to make any money from your content. It’s possible they will consider posted to Facebook as still published, but you have a better chance they won’t.

A lot of people don’t care about that. And even those who do realize the world is changing a bit and some (emphasize some) bloggers are getting deals with publishers to republish blog posts. But this is rare. Most publishers are still seeking only previously unpublished material.

On the flip side, If you don’t care about making money from your content – the Terms of Service really shouldn’t bother you. At least not the part about Facebook having perpetual rights to your content. You posted it to Facebook for all your friends to see, why should you care if they get to continue looking at it once you delete your Facebook account?

Some have made a big deal out of this line:

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

Primarily, because they misunderstand what a “Share Link” means in Facebook terminology. Facebook allows you to add a widget to your newspaper, or blog, that any reader can click on, and by clicking on it, they can post the article to their Facebook page. Facebook terms must grant them rights to that content, or otherwise, you could sue them when someone uses it. If you don’t want someone posting your content to Facebook, don’t add a Share Link to your content. That’s simple.

A simple link from your Facebook profile to your content off-Facebook doesn’t “enable a user to Post” that content in any fashion. It only enables them to follow the link and read your content off-Facebook.

Finally, the list of verbs in section (a) do seem quite extensive.

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)

It’s more extensive than many sites, and at first glance I didn’t believe all of them are necessary for Facebook to claim. My suspicion was that Facebook lawyers dropped some standard language in and didn’t really think about what they needed to claim and what they didn’t to protect themselves against lawsuits. Then I thought about it. There are a lot of different applications on Facebook. I understand that when I post a long note, only an excerpt might appear in some places, and different words could be interpreted to apply to the various ways the Facebook applications manipulate content. Tagging photos with people’s names is modifying the photo, or perhaps creating a derivative work. ‘Publicly perform’ is probably necessary for videos. I suspect they might translate some text into foreign languages – probably using computer translation, or have plans for doing so. Scan is the only right I don’t comprehend the need for. Though conceivably the process of tagging individuals in photos involves scanning the image.

In short, except for their ability to use my name, image and likeness in their advertising, I have no problem with Facebook’s TOS as written. I understand why they claim what they do, and why they need to claim what they do to avoid lawsuits. I comprehend that I retain my ownership of content completely, and lose no rights that I wouldn’t lose posting the content on my own website. I might even retain more rights by posting it on Facebook. I comprehend that Facebook makes no claim to share my user content with anyone beyond what my privacy settings dictate. It could definitely be written more clearly in less legalese. If anyone thinks my interpretation is inaccurate, please explain why in the comments.

I have changed all my privacy settings to Friends Only. Those in my networks who want to be my friends probably only need to ask.

********
Here’s how the ToS now reads – either the old ToS or a still new one.

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.

There is no reference to privacy settings. the “any purpose, commercial, advertising, or otherwise” applies to everything. The terms the Facebook community was in uproar about — I want them back. They were good. (hard to understand through the legalese, but good.) I am hopeful they are working at this moment on the language to make it clearer.

0 thoughts on “Rights, Wrongs and Facebook

  1. Thomas MacEntee

    While I could understand what Mark Zuckerberg at Facebook was getting at (and it makes total sense that you can’t claim total ownership in certain circumstances of social media usage), I along with many others took umbrage (gosh, do people still do that? “take umbrage”) with the sneaky way in which Facebook made the changes to the TOS and then tried to take this Microsoft “you will be assimilated” stance as if Facebook actually had the power to “lay down the law” as it were.

    This morning’s approach that Facebook has taken makes sense:
    – we will always alert you to major TOS changes
    – Facebook TOS will undergo a major revamp soon
    – the changes to the TOS will be in plain English

    Facebook has the ability to change the way content is used in social media and I respect and even welcome that. However, this latest attempt was an utter PR and customer service debacle if you ask me.