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Is Facebook’s New Terms of Use a Naked Rights Grab?

February 17th, 2009 · 2 Comments · Business Ethics, Transparency vs. Secrecy, Web 2.0/Social Media

Facebook’s recently adopted Terms of Use are attracting harsh attention in the online world.

Ownership; Proprietary Rights

Except for User Content and Applications/Connect Sites, all materials, content and trademarks on the Facebook Service are the property of Facebook and/or its licensors and are protected by all relevant IP laws and other proprietary rights

OK, no problem so far; user content remains the property of those posting it, and Facebook quite correctly maintains its rights to its own intellectual property. But then a little later, the kicker. An apparent transfer of rights to Facebook, to use your content any way it wants, with no compensation to you.

Licenses

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.
(snip)
Submissions

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.

Say, what? By my reading, this not only gives Facebook the right to sell our content without even telling us, let alone cutting us in on the revenues, but also could be interpreted–it’s a stretch, but lawyers exist as an industry because of these sorts of stretches–as allowing the company the right to use any content that includes a please-link-back utility that includes Facebook.

Writing in The Consumerist, Chris Walters says this means “anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later.”

As Amazon, Google, and other content platforms have claimed in the past, Facebook responds that it’s just claiming the rights necessary to operate the service:

We are not claiming and have never claimed ownership of material that users upload. The new Terms were clarified to be more consistent with the behavior of the site. That is, if you send a message to another user (or post to their wall, etc…), that content might not be removed by Facebook if you delete your account (but can be deleted by your friend).

Quoted in the Chicago Tribune, Facebook CEO Mark Zuckerberg put it this way:

We wouldn’t share your information in a way you wouldn’t want,” Zuckerberg said. “The trust you place in us as a safe place to share information is the most important part of what makes Facebook work.

Still, like those other platforms, this response seems thin and inadequate. Surely a lawyer could easily create language that fully protects Facebook while at the same time making it completely unambiguous that user-posted content belongs to its creators, who are merely providing Facebook the right to display and link to it. Without sublicensing, monetary or other compensation, or other seizure of rights the company doesn’t need.

Meanwhile, I’m not a lawyer (and this is not legal advice), but here’s my gift to the Internet community. I freely grant anyone the right to use or modify the following paragraph (which will be posted to Facebook, since my blog automatically feeds into Facebook notes):

I hereby note that I was not presented with the option to sign or decline Facebook’s February 4, 2009 Terms of Use revision, and that while I allow Facebook to display my content on any page where I post it or on any page where another Facebook user links to it, I do not transfer ownership of my intellectual property, nor do I agree to allow Facebook to relicense or reprint my content outside these uses without my approval. I am willing to negotiate licensing and revenue-sharing agreements with Facebook, but I explicitly do not grant blanket permission.


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