Wednesday, February 18, 2009

Summarizing the Latest Facebook TOS Scandal...

It's been in the news all week, but it's nevertheless worth reviewing the controversy over Facebook's new Terms of Service in order to draw some lessons moving forward.

On February 4, Facebook made a subtle change to its Terms of Service (TOS), probably figuring it would go unnoticed because who reads those things anyway? The new TOS included the following phrase...

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.

Well, this change to the TOS did not go unnoticed. A popular blog, The Consumerist, informed the world about it, running a headline, "Facebook's New Terms Of Service: 'We Can Do Anything We Want With Your Content. Forever.'"

Facebook's terms of service (TOS) used to say that when you closed an account on their network, any rights they claimed to the original content you uploaded would expire. Not anymore.

Now, anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later. Want to close your account? Good for you, but Facebook still has the right to do whatever it wants with your old content. They can even sublicense it if they want.

And, thus, the story snowballed and spread in such a viral manner that would make every dot-com hopeful drool. The Consumerist post received hundreds of comments, thousands of Diggs, and half a million page views. Meanwhile, outraged Facebook users created several groups on the site itself with names like "People Against the New Terms of Service (TOS)", each one quickly recruiting tens of thousands of members. Finally, the mainstream media caught on, with the story reported on Fox News and in the New York Times, to name only two.

In response to this public pressure - both from media critics as well as from its own users - Facebook ultimately decided to withdraw the changes to its TOS.

So what can we learn from all of this?

First of all, Facebook is scary. We're all aware of how privacy is becoming a very tentative thing in cyberspace, but our fears are more focused on what other users may do with sensitive information about us. But here was a case where the company itself decided to store and use our posted material long after we would have deleted our accounts, even sublicensing (a.k.a - selling) it to third parties, and doing so as a matter of official company policy. I'm not a Big Brother conspiracy-theorist, but that remains shocking nonetheless.

Second, the mass mobilization of users protesting the company's policy was not as effective as was the negative press coverage in the mainstream media. Protest advocates are surely slapping themselves on the backs today with an apparent victory, however, they were not deciding factor leading to Facebook's decision to ultimately relent. Despite all of the page hits and Diggs on The Consumerist blog, the 200,000 or so people who joined the Facebook protest groups - while impressive - still pales in comparison to the roughly 150 million people on Facebook. By my calculations, 1/10th of 1% is not exactly strong evidence that a revolution is about to take place. The truth is that Facebook fears negative media coverage in the New York Times and on the Nightly News more than they do such a small percentage of its users in revolt (most of whom weren't going to delete their accounts anyway). That's a meaningful lesson to remember moving forward.

Third, people remain fairly ignorant as to ownership rights in cyberspace. Let me clear this up for everyone... anytime you post something on someone else's website, it is no longer yours. The only legal question is to what degree you might still retain some rights. Anytime you write a comment on someone's blog, the blog owner now owns your comment. Have you chosen to share a song you wrote on MySpace? Most likely, MySpace now owns at least a partial copyright on your song (So much for getting a record deal). The same is true with any photos or videos that you post on YouTube, Flickr, or, yes, Facebook.

The fundamental problem is that too many people believe that, somehow, their Facebook profile belongs to them; that they own it; that they can decide what happens to its content. But, as this week's drama illustrates, that is certainly not the case. The bottom line is that you are still using the services of a private, commercial website, and, through Terms of Service agreements - which are quickly becoming the de facto law of the Web's various walled gardens, - you are clearly at their mercy.

In other words, it is someone else's.


At 1:56 PM, Anonymous Anonymous said...

This is extremely scary. Considering how many of my little cousins post pictures of themselves in bathing suites, etc, knowing that Facebook has the right to sell those pictures is very frightening.


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