Dated kerfuffle

>> Monday, February 23, 2009

I'm not on Facebook, and anyway Facebook has already reverted their terms of service, but I do feel obligated to chime in after reading yet another commentary that misses the point.

The problem with what Facebook attempted to do was not that Facebook was claiming ownership of user content. Nor was the problem that Facebook was breaching anyone's privacy (frankly, I've come to the conclusion over the last few months that Google has already made privacy a quaint notion anyway). The problem was that Facebook amended their terms of services in a way that gave them a permanent and irrevocable license to use other people's intellectual property for any purpose "in connection with the Facebook Service or the promotion thereof," including intellectual property not actually originating on Facebook, i.e. offsite content made available to Facebook users via widget or feed access (e.g. if Standing On The Shoulders Of Giant Midgets included a share button for Facebook users to link to articles, it appears that Facebook would claim I have unintentionally granted Facebook an exclusive license to use SOTSOGM for commercial purposes notwithstanding the fact I'm not myself a Facebook user and SOTSOGM is published under Creative Commons Attribution-Noncommercial-Share Alike 3.0 license with remaining copyrights reserved to myself).

Here's the controversial clause:
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.

No other major social networking site has ever attempted to lay such a broad claim to usage, and several specifically disavow such licenses. Flickr's license to use others' intellectual property terminates, for instance, when you take your content off of Flickr and Flickr apparently doesn't claim to be able to use submitted intellectual property for commercial purposes such as advertising.

Advertising is an obvious focus because it's logical, but "on or in connection with the Facebook Service" is a pretty damn vague clause. Suppose, and let's admit it's a far-fetched example but it serves a purpose, that Facebook decides to expand into book publishing with a series called "Facebook Presents." Facebook Presents The Year's Best Photography or Facebook Presents Facebook's Funniest Walls--normally such a side-venture would require a company to go and get licenses to reproduce copyrighted material (and your work, by the way, is automatically copyrighted to you; registration is merely for the purpose of making it easier to establish your rights if they're challenged), but the controversial Facebook terms of service would have eliminated that, and eliminated it forever, that is if you were ever on Facebook you would have expressly given up your licensing rights. And the licensing rights arrogated under the broad terms-of-service would have included derivative works: if Facebook wanted to turn wall messages into Facebook: The Motion Picture or Facebook Comix I'm not sure exactly what you'd be able to do about it.

Understand, Facebook still wouldn't own your wall messages or photos or whatever. The claim that Facebook said they own you or your data is utterly false. They just wouldn't have to pay you or ask you for your permission or even tell you what they were doing. See the technical distinction? A claim that Facebook owned content would necessarily deprive you of all rights not licensed back to you. Under the terms Facebook attempted to set forth, you'd still own your content and be able to license or sell it to a third party; meanwhile, Facebook could screw you at will as long as said screwing could be lumped under their vague, general "in connection with the Facebook Service or the promotion thereof."

Another contrast--here's what Google says about IP in the terms-of-service for Blogger:
Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services. Google furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion.Terms of those Services. [emph. in orig.]

See the difference? Google explicitly states IP rights are retained by the owner (and the owner is responsible for protecting them), and that Google's license to reproduce is limited to the sole purpose of distributing Google services, i.e. Google may reproduce your blog for the sole purpose of displaying your blog through Blogger. Google's 101 Awesomest Blog Entries will not be hitting shelves any time soon unless Google contacts the authors of one-hundred-and-one blog posts and obtains the necessary permissions (presumably by paying the authors).

The kerfuffle over the Facebook terms of service was justified, even if the reasons got mangled. Even if Facebook never intended for their clumsy grasp at an unlimited license to be a clumsy grasp for an unlimited license, what they might have intended to do isn't what they did. And I hope that Facebook users will pay attention to what Facebook attempted to do. The fruits of your intellectual property have some kind of inherent value, even if that IP mostly consists of blurry, red-eyed photos from Friday's drunken soirée.


MWT Monday, February 23, 2009 at 12:27:00 AM EST  

The thing that I don't understand is how the thing you quoted is different from what was there before. This is what it currently says in the Terms of Use (dated Sept 23, 2008 - presumably what it is after they reverted:

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.

It still says that they can do anything they want anywhere they want without paying, including sell it and make derivative works. How is this better?

Eric Monday, February 23, 2009 at 1:09:00 AM EST  

The main difference is that the original/reverted clause license is limited ("the license granted above will automatically expire"); once this license expires, the user agrees that Facebook may retain archival copies, but there is no explicit license to use the archived copies.

During the time that User Content remains on the site, Facebook's license is extremely broad--they could hypothetically use posted content for Facebook--A Rock'n'Roll Opera (or whatever); but they run into a problem since you can revoke their license to use your material simply by pulling your content down, see? So while their license is extremely broad, it's worth a lot less so long as there's an owner's right to revoke their license.

Hope that made sense.

Eric Monday, February 23, 2009 at 1:12:00 AM EST  

Oh--and also the original/reverted version doesn't have the "grabby" clause (a)(ii) that ostensibly would have given Facebook a license to use non-Facebook content linked-to on Facebook. That would be the second crucial difference.

MWT Monday, February 23, 2009 at 3:09:00 AM EST  

Hrm. I suppose I'm not quite grokking the meaning of the word "irrevocable" in there, then.

Eric Monday, February 23, 2009 at 7:39:00 AM EST  

I think I see the issue: the original/reverted license says "irrevocable" early on, and "perpetual," but it also says "will automatically expire" if the content is removed. You have an excellent point, looking at it again.

That, my friend, is a shitty, confusing and self-contradictory license.

I think that a court resolving the contradiction would have to go with the second clause as controlling, since a license that clearly states the terms of it's expiration isn't actually "perpetual."

I do believe you've pointed out another reason I won't be joining Facebook any time soon. :-)

Random Michelle K Monday, February 23, 2009 at 10:22:00 AM EST  

Another point that I picked up from someone else's analysis is that much of it depended upon your privacy settings. If you allow anyone to see your stuff on Facebook what theoretically could happen to your material is different than if you have your settings so only friends can see your information.

Which is how my settings are in Facebook. You have to know me before you can see my stuff, which means it's less likely that some random weirdo could wander by and take my pictures/content.

Not that I put much of either on Facebook. As I've said before, it's a way to keep track of people. If they want more than my Twitter updates, they'll have to come to my website. I don't spend much time there otherwise.

Eric Monday, February 23, 2009 at 11:12:00 AM EST  

Michelle: I'm not sure about that analysis. From what I can see, the biggest issue is how Facebook can use your information.

If you compare other companies' TOS, it doesn't appear that any major company makes the same licensing claims Facebook did/does. Nor has any company, so far as I know, attempted a "grabby" clause that would make non-service content into service content via link or widget.

(Consider, for instance, the webcomic Wondermark: David Malki has a widget on the page that allows readers to share Wondermark on Facebook and other services ("powered by 'Add To Any'"); it surely isn't Malki's intent in doing so to give Facebook an irrevocable license to do anything they want with Wondermark strips, and yet that appears to be what the controversial license would have allowed.)

So we're not really talking about random weirdos. Piracy may be hard to stop, but you at least have hypothetical legal remedies (e.g. you could send the random weirdo a DMCA takedown notice and sue for noncompliance if the pirate fails to take down your data. But if Facebook recycles your photos, music or words? Under their revised TOS, you would have had no recourse; under the original/reverted, you at least seem to have the recourse of pulling your intellectual property from Facebook and sending them a DMCA if they then attempt to use your intellectual property for a non-archival purpose (but see the prior discussion with MWT about what "perpetual" and "irrevocable" mean in the o/r TOS).

vince Monday, February 23, 2009 at 11:42:00 AM EST  

Eric, it's because of terms of service like these that I strongly urge clients to stay away from cloud computing applications such as Microsoft Live and Google Apps. Note that the terms of service for Google Apps read in part:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this licence includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above licence.

I actually had a law firm client considering using Google Apps at the recommendation of a competitor.

Eric Monday, February 23, 2009 at 12:26:00 PM EST  

Vince, you have a good point there, and it's the reason I think "cloud computing" may be DOA instead of the Next Big Thing everyone's making it out to be. It may be just fine for some purposes, but it's a definite "hell, no" for confidential data (e.g. a law firm or doctor's office) and pretty iffy if you're wanting to keep some kind of lid on data (e.g. I wouldn't write a novel I was planning on publishing on Google Apps).

One thing that might be noted in the present context, however, is that Google's TOS at least appears to acknowledge a revocation clause on a service-by-service basis. The "promote the Services" clause remains troubling, although Google's license appears to be primarily for the purpose of reproducing content so it can be distributed (i.e. making a word processing document available on two different machines--say a machine at work and the same user's machine at home, which is part of the point of cloud computing--necessarily requires making a duplicate and transmitting it, possibly with alterations so that it properly displays on both machines.

That sort of limited license is necessary and understandable. But the idea of "promotional" licensing seems to open the door a bit for commercial uses that a user probably doesn't contemplate.

(Probably being an operative word: I certainly entered my relationship with Blogger understanding that Google might want to use some or all of my content to promote Blogger--I don't mind, since doing so would almost certainly happen to simultaneously promote me.)

Another distinction in the Google Apps TOS agreement is that you'll note it doesn't mention "derivative works." This is a term of art that encompasses more than just making a digital copy that can be transmitted over a network. A license to include "derivative works" would allow a service to make new work using the user's intellectual property (e.g. unauthorized sequels, remakes, remixes, cover versions, mash-ups and spin-offs are all forms of derivative work). There's no legitimate reason I can think of for a service provider to include a "derivative works" clause in their TOS.

Anyway, I'm glad you steered those folks straight on Google Apps, Vince. I'm a bit appalled that a law firm was considering using GA, and have to assume they were just clueless.

mattw Monday, February 23, 2009 at 3:12:00 PM EST  

I prefer my kerfuffle with rasins and not dates, thanks.

Sorry, didn't really have anything intelligent to add. :)

Eric Monday, February 23, 2009 at 3:25:00 PM EST  

Whenever somebody mentions dates, I always picture a dead monkey and John-Rhys Davies. Because that's just how nerdy I am.

Leanright,  Monday, February 23, 2009 at 6:29:00 PM EST  

If anyone wants to lay claim to my facebook speedo pics, have at it!

I look fabulous. Beer belly and all.

neurondoc Wednesday, February 25, 2009 at 10:45:00 PM EST  

Whenever somebody mentions dates, I always picture a dead monkey and John-Rhys Davies. Because that's just how nerdy I am.

I adore that movie. My 6 year-old watched that movie for the first time a couple of weeks ago with me. She is clearly a future horror movie watcher, since she didn't flinch at the face melting scene. Her comment: "that was neat, Mommy!"

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