FILMMAKER BLOG  Monday, February 16, 2009
FACEBOOK TERMS OF SERVICE CHANGE CAUSES UPROAR
Just after I posted a link to Lance Weiler's article in the current issue in which he discusses data portability and how filmmakers should not aggregate all their social networking content on third-party networks like Facebook, and a day or two before I post my interview with Tommy Pallotta on why he left the popular site comes a series of of postings online about Facebook's new Terms of Service policy. In a post titled "I'm Done with Facebook," Edward Champion writes, "I would advise any writers, artists, and photographers to remove their content posthaste, and not give Facebook the right to profit on your hard labor. Creative Commons and community is the solution. Not autocratic assignation of rights." Chris Walters at The Consumerist has the details: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. He quotes the site's 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. Walters comments: That language is the same as in the old TOS, but there was an important couple of lines at the end of that section that have been removed: "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." Now, those sentences have been replaced by one that explicitly states that Facebook has rights to these materials after your account is deleted. In the few days since these changes were made, many bloggers ranging from children's book editors to camp counselors have posted their concerns. And Carolyn E. Wright, who runs the Photo Attorney blog, looked into Facebook's TOS last month and warned photographers that uploading their work allows these photos to be used by Facebook. Fortunately, she said, "the license expires when you remove your Content from the site." Those words were written in her post on January 9, and they are no longer true. Paranoid or not? Any intellectual property attorneys or experts, please weigh in. UPDATE: Taking note of the online outcry, which included statements like New Yorker music critic Sasha Frere-Jones twittering that he has deleted his Facebook account, the service has announced some clarifications to its terms of service policies that are outlined in this CNET post and in this blog posting by Facebook prez Mark Zuckerberg. From Zuckerberg: One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created—one in the person's sent messages box and the other in their friend's inbox. Even if the person deactivates their account, their friend still has a copy of that message. We think this is the right way for Facebook to work, and it is consistent with how other services like email work. One of the reasons we updated our terms was to make this more clear.
In reality, we wouldn't share your information in a way you wouldn't want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work. Our goal is to build great products and to communicate clearly to help people share more information in this trusted environment.
We still have work to do to communicate more clearly about these issues, and our terms are one example of this. Our philosophy that people own their information and control who they share it with has remained constant. A lot of the language in our terms is overly formal and protective of the rights we need to provide this service to you. Over time we will continue to clarify our positions and make the terms simpler. Zuckerberg's post and comments issued by Facebook spokesmen Barry Schnitt (""We are not claiming and have never claimed ownership of material that users upload," a statement from Facebook spokesman Barry Schnitt read) go some way towards clarifying the company's intentions. Still, Zuckerberg's statement focuses on content like Wall postings and private messages, not copywritten creative material that should be more strictly quarantined from Facebook's automatic promotional license. As Caroline McCarthy's CNET piece concludes: Unlike the Yahoo-owned Flickr, Facebook does not have extensive copyright preferences, meaning that a professional photographer might want to choose a media-sharing site where there's less of a gray area as to what can actually happen down the road.
But as Facebook becomes more and more of a content-sharing hub, especially now that the Facebook Connect product expands its reach to third-party sites, it's likely there will be a louder cry among members--especially those involved in creative industries who use their Facebook profiles for professional promotion or publicity--for clearer terms.
The way they stand now, Facebook's terms of service claim that the company does not have ownership over content, yet that it does have "an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (to)...use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works, and distribute" material as long as it doesn't violate the privacy preferences set by the user.
Considering Facebook content is login-protected by default, the outcry should be quelled somewhat by that "subject only to your privacy settings" phrasing. Still, this is a debate that might not go away so quickly.
Comments (9)
But if the content is subject to a user's privacy settings, doesn't that mean that you can limit facebook's use of your content by marking it private?
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posted by @ 2/16/2009 9:21 AM
Follow a Film - an online campaign designed to act as a behind the scenes look into independent films - will no longer be posting images from the production and has deleted all of our photo content from our group in reaction to this. It is unfortunate that Facebook feels they need the right to the content posted on this social network, even after accounts have been deleted.
Follow a Film has developed it's own site to hold all content instead, which will not prevent us from posting.
new site - http://www.merchantfilms.com/follow/info
Follow a Film is very disappointed that we are limiting the posts on Facbook now and will be contacting Facebook directly to notify them.
We urge others to contact Facebook and tell them how disappointing it is that this social media channel is now forcing others to place limitations on posted content.
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posted by Laura Fry @ 2/16/2009 2:25 PM
I don't understand why anyone in this day and age would cling to the quaint notion that anything they post on a public internet board would be private and accessible only to those the poster wants to see it.
I know of a student who posted generalized death threats, Columbine style, on her Facebook pages, which were accessed by her future college room mate [my niece] , and then reported by my niece to college authorities, who were so concerned, they cancelled the threatening girl's acceptance to the university.
That student tried to sue [after taking down her Facebook profile and content] on the basis her content had been private musings, not real threats, but several people had copied the content and it was available to the university and lawyers. There was a summary judgement denying the student's rights had been violated by using the Facebook content. The university has a no tolerance policy vis a vis death threats, and she was not allowed to register. My niece, her parents and family are grateful that the offending student was not able to hide behind claims of privacy.
The bottom line... don't post anything on a website or message board that you don't want others to use, read, share or borrow. There is no privacy, there is no exclusivity on the internet.
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posted by @ 2/16/2009 5:26 PM
The issue has nothing to do with privacy or death threats. And of course what you post on a social networking site is not private. The question is rather, should what I choose to share with my friends be able to be used for commercial and advertising purposes by Facebook? Should a commercial license be able to be embedded in their terms of service policies and, also, what rights to third party material are you now de facto representing that you have when you post something that you don't intend to be used for commercial purposes?
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posted by Scott Macaulay @ 2/16/2009 5:42 PM
Exactly what Scott says -
Follow a Film, as most Facebook groups, was created to share all content - otherwise I would not post it. It was not created for Facebook to then have rights to that content.
I thought the purpose was socializing and networking online....
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posted by Laura Fry @ 2/16/2009 6:34 PM
Mass exodus from Facebook by creative people coming soon I think.
Facebook deciding to use personal content for Facebook's commercial purposes is not gonna be popular with a lot of people, including people who make art/entertainment.
Back to our own websites & blogs (until Blogger, etc. decide to try the same approach as Facebook) & then back to just our sites I guess.
On the bright side, less time will have to be spent on the web - which can't be a bad thing :)
- Sujewa
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posted by The Sujewa @ 2/16/2009 8:47 PM
I have been avoiding joining FB for the reason I find their terms so usury (among other reasons (insert various issues like real "friends" in the age of FB etc. etc.)). After Sundance this year, several people I connected with there wrote me with an "how come no FB?" Yeah I felt like a luddite living in the dark ages, cutting off my career (via the network on FB) to spite my convictions.
FB is set to profit HUGELY by the so-called "free" use we get. This seems wrong too me w.r.t their terms -- in a nutshell. (Yes there is more than can be said on both sides re: "benefit"; posts like these are Cliff's notes). I've thought that, yeah, I could moderate my FB use and what I post--understanding that FB wouldn't have any real value in terms of sharing my work: why would I post anything they have such absurd rights to? And to ANONYMOUS, yes I agree-- we don't assume privacy and shouldn't in this day and age, you are right--but if you read the terms of service you will see how outlandish their terms are. My favorite (no, not really) is their right to create derivative works. And we thought some old-school distributors licensing clauses (not to mention some publication's) were ball-breakers...
There's clearly more that can be said about all this from many of us--like what Scott has mentioned and also FB's "unrestricted use" of content others post that may be yours (that others merely have to agree to with a click, as if everyone reads the TOS anyway and doesn't just scroll down to the "agree" box).
FB is really just like any corporation wanting to acquire whatever rights they can. And I don't blame them per se. But unlike, say, a contract between you and a distribution co. licensing your film wherein you want to negotiate terms -- there is no dialog, no negotiation. (And good on you Laura for taking that action with FaF, attempting that dialog, perhaps it will lead somewhere). Just two weeks ago I emailed FB customer service three times to talk about my concerns about their TOS -- I've had questions about content ownership and wanted to understand them clearer. I even spent time online searching down a customer service # and trying one to no avail. And, no I never heard back. I don't like being in business (or any relationship) with someone I cannot actually communicate with. And I certainly wouldn't give up anything of value to me if I had problems with terms and couldn't negotiate them. So leave licensing your work to people, websites, and co.'s you want to -- and can -- do business with. Maybe FB was never meant for more. Which brings me back to doe and considering FB to be used for very casual communication only...
But maybe that would be a time-suck from things like writing Obama and my Representatives to do something about those other usury folks, Big Banks, who are trying to get something from nothing: raising interest rates on credit cards from those taxpaying citizens who bailed them out... do I digress...
harriette yahr
yahrfilms.com
thewritingconsultant.com
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posted by @ 2/16/2009 8:58 PM
I'll still use Facebook for personal reasons but I won't use it for any of my creative business and I won't post any of my work there. It's a very poor policy. Would they actually act on it? Probably not but that's not good enough. I'm not "disappointed." That's too weak a word. I'm frightened but also very glad that I haven't done anything on Facebook other than talk to my friends. Seeing how things go I may have to cease that too.
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posted by @ 2/17/2009 12:52 AM
It makes no sense that Facebook would risk messing up a good thing by edging in on people's intellectual property. They had people's trust and then they go and risk losing it; not smart.
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posted by coffee @ 2/22/2009 3:59 AM
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