Terms Of Service.

As a relative newcomer to Facebook, I’m amazed at how quickly people from my past have appeared back on my radar, with spouses and kids and daily lives shared in pictures and video. It’s really incredible how well the service has their search algorithms tuned to the different networks each user belongs to–schools, employers, family, geography; it’s like a mainline fix of “Where Are They Now” direct to the cerebral cortex.

However, as with any other remotely-hosted online service, there are caveats and gotchas, which was one of the reasons I resisted joining for so long. This past week they quietly changed their Terms of Service policy to claim ownership of everything on the site, from users’ five-word status updates to uploaded videos. As one might expect, this did not go over very well with the user base.
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.

What that means, in a nutshell, is that the picture of your puppy you posted two months ago could be used in a commercial for Facebook or resold to anyone they choose. And, if you’ve logged into your account since February 4th, according to the language in their TOS, you’ve accepted these terms, even if you never read them.

As a longtime web citizen and onetime hosting provider, I learned early on only to upload things I don’t mind sharing with the world–because once it’s on the web, it’s in the public domain forever. It’s pretty common knowledge that employers use Google, MySpace, and Facebook to vet their prospective employees, so I figure people have probably gotten a little smarter about sharing incriminating pictures these days (or maybe not). I’d also guess that most people post pictures and video to the web with little or no regard to how it could be reused by someone else, and even if it was, chances are, they wouldn’t care.

But that’s not my point here. What’s most disturbing about this story is the way it was handled by the company itself. These days, it’s pretty standard boilerplate in any online TOC to say something like

By using or accessing _____, you agree that you have read, understand and are bound by these Terms of Use (“Terms”). We reserve the right, at our sole discretion, to change or delete portions of these Terms at any time without further notice. Your continued use of _____ Service after any such changes constitutes your acceptance of the new Terms.

Do you like that Catch-22? In order to read the new terms, you have to log into the service. Simply logging into the service means you’ve agreed to whatever they decided to say without actually having read it. This is the same sneaky behavior credit card issuers have recently gotten into hot water for (suddenly hiking interest rates, confusing rate structures), which has prompted Congress to step in and add legislation to curb abuses in that industry. While it’s doubtful the government will do anything to outlaw sudden changes in TOS agreements, it’s time our industry started operating more transparently and stopped claiming ownership over everything. Many brilliant minds have considered this problem, and Creative Commons has developed an excellent framework for sharing, attribution, and compensation of user-created content–the framework of which is already baked into photo sharing sites like Flickr. Now is the time for online services to do the right thing and show more respect to their user communities.
Update: It looks like the Consumerist’s article struck a nerve; Facebook reps are now trying to “clarify” their TOS changes and explaining they never meant to claim ownership over user content. Mark Zuckerberg has also tried to explain the company’s policy, but his weblog post sounds more like a backpedal than a clarification. 

It’s difficult terrain to navigate and we’re going to make some missteps, but as the leading service for sharing information we take these issues and our responsibility to help resolve them very seriously.

So, there you have it. In the meantime, be careful what you share with the internets.

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