The Facebook TOS controversy moved so quickly that I had very little opportunity to take it all in before it was seemingly over.

Here’s what happened:  back on February 4, 2009, Facebook made several changes to its Terms of Service.  I do not recall having heard of the changes before they went into effect.  I certainly received no notice from Facebook.

Apparently few people noticed until  Chris Walters of   The Consumerist pointed out the changes in an item posted on February 15.

The changes that were most controversial were those dealing with “User Content Posted on the Site.”  Several sentences seemed particularly offensive. One sentence was actually there; the others were missing.

This is the sentence that was in the TOS:

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.

This provision apparently always has been in the TOS.  I suppose most people thought  that the expansiveness of that provision was somehow mitigated by the next provision:

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.

Except that, in the February 4 version, this “mitigating” provision was gone.  And the “User Content” provision was listed as one of several that survive termination of one’s account.

All Your “Face” Are Belong to Us

The blogosphere seemed to go into a slow-motion but seething outrage over the new TOS.  Nonetheless, Facebook soon backed down amid reports that thousands of users had quit the service.

So what’s deal with the new TOS?  First of all, as I noted, the User Content provision has long been in the TOS.

And it is expansive!

Words have meaning and words like “irrevocable,” “perpetual,” and “worldwide” mean exactly that when they precede the word “license.”  But the scary part to a lot of folks is what the license is for: it allows Facebook to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, and it allows Facebook to allow others to do the same with a user’s posted content.

That’s the plain meaning of the language.  So Facebook CEO Mark Zuckerberg was plainly disingenuous when he said the other day on the Facebook Blog, “Our philosophy is that people own their information and control who they share it with.”   The fact is, under the plain language of the TOS, Facebook, and not users, has substantial control over content and over the sharing of that content.  By the way, I don’t think that the right to remove one’s content really mitigates the expansiveness of the license.

I understand and accept the argument that Facebook makes about needing the license to enable sharing of content with those a user desires to share with.  That’s pretty much required by the legal/technological present state of the art on social networking  sites.  But there are ways to do that and then there’s the approach Facebook took.  Compare, for example, the Google TOS for Picasa and other Google services:

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, a dapt, 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.

Google makes clear what its intentions are.  They don’t use words like “derivative works” which has a certain legal meaning when they can describe more narrowly what they mean.

A company like Facebook doesn’t write TOS accidentally.  Every word has been measured, re-measured, and checked again by highly skilled lawyers, who mean what they say and say what they mean.

Now what did Facedbook do wrong:

• Facebook hid the TOS changes in the shadows, a move always bound to raise suspicions.
• Facebook wrote the TOS in language so expansive–far beyond their legal or technological needs– that there seemed to be no limit on FB’s power over content.
• Facebook failed to spell out its intentions concerning the language in the TOS.
• Facebook failed to recognize adequately the Users’ interests in their own content.
• Facebook gave disingenuous answers when confornted with the  matter.

What did Facebook do right?

• Facebook acted swiftly once they smelled the smoke.
• Facebook reverted to the old TOS which give some people more comfort.
• Facebook has committed to a process involving users as they go forward.

Mark Zuckerberg has compared Facebook to a country.   If that’s an apt analogy, Zuckerberg should understand that it is a collaborative, consensus-based state.  The governors have every right to propose; but ultimately, the people will dispose.