Facebook’s Rights Grab – I’m Out

January 22, 2009 by 42 Comments

Tonight I was wondering if I should delete my Facebook account. I don’t really use the service… about all that ever happens is that I respond to friend requests. I’m opposed to the fact that Facebook prefers walled gardens to the open web. Having a Facebook presence wasn’t really harming me… but it wasn’t helping either.

Then I read Facebook’s Terms of Use. That pretty much sealed the deal. Unless I’m reading something wrong, I have an issue with this section:

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.

By posting anything to Facebook, you’re granting Facebook a license to pretty much do anything they want with it, including commercial use.

No thanks. I’ll be making sure that I ping any Facebook-only contacts before I close the account, but my Facebook account will be deleted shortly.

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  • http://intensedebate.com/people/turoczy turoczy

    Oh great. At whom am I supposed to throw sheep now? (Apparently someone who doesn't read the fine print.)

  • http://www.deborahbeatty.com/wordpress DeBorah Beatty

    I find this extremely interesting, especially in the light of all the hard work people like Mari Smith have been doing to get folks to sign up there. I'll have to think about this and perhaps close my account as well.

  • Robert MacLean

    What makes them even more evil is that it is also a violation of the TOS to try and get your data out (broadly speaking) – there are some limited API's but the wealth of the info is lost. So moving away is unfortunately very hard and Facebook is very quick to act (see http://www.roughtype.com/archives/2008/01/scoble_…for an example of how quick).

    If this is important to you please see: http://www.dataportability.org/

    • http://intensedebate.com/people/ahockley ahockley

      I'm certainly a fan of data portability, the open stack, etc. and I hope that in the future we'll see more services embrace open standards and realize that I am the one who should control my data.

  • http://intensedebate.com/people/DaleChumbley DaleChumbley

    I'm wondering if this is only limited to what you directly post to facebook or also to anything that you link to in facebook. The two are quite different. Certainly worth investigating. Thanks for digging Aaron.

  • http://www.Centraloregonbuzz.com Thesa Chambers

    I would think that this is what you put on Facebook – if it is a feed it is actually a third party just like a lot of the applications – Now people like Jason Crouch who is writing notes and posting listings that work becomes part of Facebook as soon as he puts it out there on their platform – had he fed the information through a third party such as his own blog and a feed – Facebook would have no claim. I hope Facebook uses my photo and contact info…. I could use the publicity…. very valid point – be careful where you spend your time and efforts.

  • http://jasonmauer.com/ Jason Mauer

    If you think about it, Facebook is using your information for commercial use all the time. They make money off of ad revenue from page hits of people checking out your content. Maybe the license could be written less land-grabby, but there is a certain amount of CYA needed on their part for them to legally use your copyrighted content at all.

    I think it's also worth noting this section of the Terms of Use:

    [snip]

    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.

    [/snip]

    If they use one of your images in a way you don't like, just delete it.

    • http://intensedebate.com/people/ahockley ahockley

      I'm in agreement. I'm sure there's a CYA aspect to it. It reminds me of the excitement over the original Google Chrome EULA, which said something to the effect of Google had the ability to redisplay and use your content. After a bit of discussion, the EULA was clarified that Google had those rights only as it related to displaying and using your content within the context of the Chrome browser.

      Facebook could make a similar change to their terms that specified that the commercial angle only applied to displaying the content on the site adjacent to advertising. I doubt anyone (including me) would have any serious objections if things were spelled out. Right now the license is pretty much wide-open, which is my concern.

      And yes, it's good that if folks delete content, Facebook says that the license ends.

  • http://damieng.com Damien Guard

    "If you choose to remove your User Content, the licence granted above will automatically expire…"

    Helps if you read to the end of the paragraph.

    • http://intensedebate.com/people/ahockley ahockley

      I did read that. I never said that I couldn't leave Facebook or that I had an issue with that portion. I have an issue with the fact that anything posted on Facebook is fair game for them until I leave.

      Hence, I'm leaving.

  • http://intensedebate.com/people/micah_elli31941 Micah Elliott

    But how do we spread the word about FB's problems? At 150M don't-understand-lock-in users it's a losing battle. FB is really trying to reinvent the web as we know, it in a closed fashion under the guise of "security" and "privacy". I think FB blows too, but most of my non-tech friends are there. I don't want to have to go to FB to "send messages"; that's what I have transparent/independent necessary services like Twitter/email/GReader/etc for. I follow my FB friends' statuses via RSS (not an FB reader app!) since I hate to login to FB. FB is a convenient service for the less savvy crowd, but they should understand that they're locked in and pulling everyone with them. I guess deleting your account and blogging about it is a good way to make a point. For now I'll just continue to slander FB via tweets that broadcast to my FB acct. Hopefully FBers will start to hear about Twitter and migrate as they realize the only cool thing about FB is its status updates, which I believe it ripped off from micro-messaging services (just last year?).

  • http://intensedebate.com/people/unclenate unclenate

    I totally respect your position, but something tells me that Facebook is most likely doing their best "CYA". I certainly see how it appears on the surface that they are solely seeking to secure all the rights to material members place on their network, whether for present and future monetary gain. However, let's consider the fact that they were almost sued into oblivion early on by a party claiming that Facebook founder Mark Zuckerberg stole their idea for "Harvard Connect". I would expect that after that experience they exercise an abundance of caution in matters of legal concern. Further, failure to protect investors interests also creates exposure just as perilous. It's fair to say that their duty is to protect the interests of their investors first and foremost, then the interests of their members. A relaxed position towards control over their network and materials posted to it would arguably open them up to lawsuits well-beyond those they already probably see. So essentially they're damned if they do and damned if they don't.

    • http://intensedebate.com/people/ahockley ahockley

      I completely agree there's a CYA angle. But that angle could be a little less broad (see my reply to Jason Mauer above)

  • Matt Behrens

    "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."

    When viewed as a whole, paints a different picture doesn't it?

    • http://intensedebate.com/people/ahockley ahockley

      How is the picture any different? It says that I can leave Facebook (which I'm doing) and that by doing so their license to use my content will end.

      I never said that Facebook claimed ownership or copyright… only that they're claiming an overly-broad license to use the content.

  • http://andypiper.co.uk Andy Piper

    I avoid posting photos there for sure… although my Flickr photos get fed to my Facebook profile through an app and so do my blog posts. I've always assumed that this only applies to content posted directly to FB rather than stuff aggregated through applications. Either way, it's a deeply objectionable policy and I've been pointing it out to people for ages.

    • Kris

      I think you should do some reading regarding the Flickr case also :)

  • Martin Gillet

    Well, this certainly violates local law such as the image right.
    They can't use my family kids pictures and sell it to another company for advertising, this would be damaging their images and breaking the law. I trust their term of use is way to wide..
    Now the odds that they would actually use my content are quite low.
    It is scary though, thanks for shedding some light on this.
    Martin

    • http://andypiper.co.uk Andy Piper

      I believe that the whole point of the user agreement is that YOU agree that they CAN do exactly that i.e. use your pictures of your kids. It may well be damaging to their reputation, but by agreeing to the ToS you are agreeing that they can do that.

  • http://cohoe.net Dave C.

    What @DaleChumbley said. I feed my blog into my Facebook posts, so this has me wondering…

  • MikeRichter

    Hmm, I thought MySpace had the same deal.
    And I have to say, so what? So what that they own any of the "original" content I put on Facebook. Everybody I know is on facebook, even my father! It's such an easy way to stay in touch in the 21st century when we are all so busy. Facebook provides tremendous value for free. If they want to own my status updates about toe jam and annoying people on the subway or photos of me at a party, it is a small price to pay.

    • http://intensedebate.com/people/ahockley ahockley

      As long as you understand and agree to their terms, go right ahead using Facebook. I'm not willing to give up my right to unlimited commercial use of my content.

  • http://intensedebate.com/people/ahockley ahockley

    Definitely a good question. What about imported blog posts? Photos? Tweets?

  • http://blog.kergosien.net Gaines Kergosien

    While I'm all about reading the fine print, I think the most important thing is the character of the people and what actions have been taken in the past. I know of no infringements on people's intellectual property or unauthorized reproduction of people's photos/posts. If you're aware of such cases, please post them. Otherwise this sounds more like someone who doesn't care for the system looking for a reason why everyone else should abandon it as well.

    Also keep in mind that Terms of Service are not the law. They have to be upheld by the law and nobody (company or user) should assume that just because something is in the ToS it is legally binding.

    The so called "walled garden" approach that Facebook takes is necessary for many of us to feel comfortable sharing photos and information about our lives that we don't want posted publicly on for anonymous internet users. Facebook is a place to keep in touch with friends, Twitter is a place to meet new friends and keep informed. They shouldn't be compared as they don't serve the same purpose.

    That's my $0.02

    • http://intensedebate.com/people/ahockley ahockley

      I think you're misunderstanding the "walled garden" term. Services can support open standards and data portability and still respect privacy.

  • Bob

    I see you have a Flickr account, make sure you read the Yahoo! Terms of Service too…
    (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html)

    • http://intensedebate.com/people/ahockley ahockley

      I checked out those terms. From what I can see, the relevant portion seems to be section 9b: "With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services."

      I interpret that to mean that when I submit my Flickr content under a Creative Commons Attribution-NonCommercial-NoDerivatives license (which is what I use), that it gives Yahoo the right to display it on Flickr or use it under that license. Section 2 of the agreement specifically addresses the fact that Yahoo may display advertising along with content that is submitted.

      In short, it's a much more explicit list of terms. Nowhere does it say that Yahoo gets a license to do anything they want with my photos.

    • http://www.performanceimpressions.com Photography

      What does that mean in English?

  • George

    I would like to see a list of social networking & media services that DON'T include a clause along these lines.

    Not the diminish the significance of the issue, because you raise valid points and this is a discussion that certainly needs to continue, but I think you'll have a hard time finding any site or service that doesn't include something about controlling any and all content you submit, mostly as a CYA measure, as mentioned above.

    I suppose my point here is that privacy issues aren't specifically a Facebook problem or a Google problem – it's a widespread Internet problem.

    • http://intensedebate.com/people/ahockley ahockley

      Bob (above) asked specifically about Flickr and I checked out their ToS, seems fine with me. SmugMug's terms indicate "by posting any Content or otherwise participating in any Interactive Area, you grant SmugMug a perpetual, nonexclusive, royalty-free right to use, publish, distribute, reproduce, perform, adapt and display the Content on the Site" – they explicitly state that the license is only for the use of the material on the site. Facebook's is overly broad without any restrictions on use.

      If you have some examples of other services which claim the right to unlimited commercial use of submitted content, I'd love to check it out and will certainly rant against it just like I have against Facebook :)

  • http://technoearthmama.com Kathleen McDade

    Like Gaines, I use Facebook differently from how I use Twitter. That's where I interact with family and mostly non-local friends. I have some overlap w/ Twitter contacts, but I decided a while ago not to friend-request anyone else from Twitter, because why bother? (if you request me, that's fine, though).

    Also, I don't put anything important on Facebook. A few family photos, etc., big deal. I link to my blog posts, and don't post the whole thing on Facebook. So the TOS doesn't really worry me. With Chrome, that was weird, because who wants Google to have rights to EVERYTHING you do in a browser? Blog posts, email, photos, websites you've designed…I don't think so. And that wasn't their intent, so they changed it.

  • http://technoearthmama.com Kathleen McDade

    That said, I think if you don't use Facebook, it IS a perfectly good reason to quit!

  • http://intensedebate.com/people/JustinS JustinS

    Those two passages contradict each other. How can you say you have an "irrevocable, perpetual" license, then go on to claim that the "license granted will automatically expire?" Seems to me that an "irrevocable, perpetual" license, by definition, couldn't expire.

  • http://intensedebate.com/people/iamjoe iamjoe

    I might be wrong but
    "however you acknowledge that the Company may retain archived copies of your User Content"

    Seems like a major CYA loop hole to save them in court.

    Also you never really delete a FB account they just freeze them. So if you change your mind you can turn it back on like nothing ever happened.

  • http://intensedebate.com/people/JP_Voilleque JP_Voilleque

    There is always going to be a balance between user rights and service providers. Particularly so long as there is an ad revenue model in place, services need to know that they "own" something beyond the demographics. Content fits that bill. I'm wondering if there are some interactions with some of the more egregious DMCA decisions that influence the decision to include provisions like this…Hmm…(wanders off to his stack of recent cyberlaw updates).

  • http://intensedebate.com/people/ahockley ahockley

    I pulled some contact information but my account has now been deactivated.

  • KramNamloc

    MikeRichter said, "So what that they own any of the "original" content I put on Facebook. Everybody I know is on facebook, even my father!"
    Some of us make our living from our content. If these corporations aren't watched carefully, they will own everything and then we'll have to pay for our own content. Without our content FB is nothing. They owe us something, no?

  • http://www.yojibee.com Anne Kathrine Petteroe

    For those of you still on Facebook I have started a group against the new TOS.
    Feel free to join..
    http://www.facebook.com/groups/create.php?success=1&customize=&gid=77069107432#/group.php?gid=77069107432

    • http://www.performanceimpressions.com Photography

      I think your group got deleted.

  • Pingback: Facebook Forever? | ma-schamba

  • http://www.performanceimpressions.com Photography

    Just read that TwitPic does the same f’ked up thing as Facecrook

  • Haruo Chikamori

    I would be very hesitant of even putting up links on Facebook even with them going back to the old TOS. 

     For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

    You see the underline “in connection with”.  That gives them a rights grab on anything you post on Facebook up to and including blog-links.  When you post a link on Facebook, you have “posted on” and the link content is published “in connection with” Facebook’s internet protocol thereby allowing them to sneak in and grab any content on the posted link.  Confirm it with a lawyer, but that means I’m out as far as posting any content or links.  I will not be putting any of my stock photography on Facebook.  If they want to see them, they can go to my blog.