The Waterfront Partnership

Facebook: About-turn on Terms

Users use service against itself to complain about unreasonable contractual provisions

 

The internet has transformed our lives.  It is now easier than ever to communicate and this has numerous advantages – we can find answers to questions, keep up to date with the news, manage and publicise our businesses and share our opinions, art and friendship more quickly and easily than ever before. However, the ‘information age’ is a double edged sword.  The ease of communication that has improved so many aspects of our lives has also exposed us all (whether we are internet users or not) to a very high risk of breach of our privacy. 

 

Facebook is just one of many hundreds of services through which people can share personal information.  Its terms of service are not wildly unusual.  Even though other popular online services have made more of an effort to come across as ‘fair’, most terms of service grant very broad rights to the online service owners (see below).

 

In actual fact, even the ‘old’ terms to which Facebook have now reverted still grant very broad rights which could, if used to their full extent, allow uses that most users would find objectionable.  Words such as “and distribute such User Content for any purpose, commercial, advertising, or otherwise” could allow Facebook to do such things as selling copies of individual’s photographs or using their wall posts in an advert.  This would surely be a matter of some concern even for an active user.

 

So, why do the service providers give themselves such broad rights?  Facebook’s Mark Zuckerberg has tried to reassure everyone by explaining that they are just trying to “clarify a few points for [Facebook’s] users”, a process which has now been taken back to the drawing board.  Unsurprisingly, the online community has found this explanation difficult to swallow and suspicions now abound as to what Facebook intend to do with all the rights that they now purport to have been granted.

 

It is quite possible that Mark Zuckerberg is not being 100% truthful in his ‘clarification’ explanation.  However, it’s also quite unlikely that Facebook has any grand master plan to sell off all our personal photographs for commercial gain… The real reason for the granting of these broad rights probably has much more to do with Facebook (and, more particularly, Facebook’s lawyers) wanting to cover their backs. 

 

Lawyers have an obligation to protect their clients to the maximum extent possible and can be sued if they don’t.  It is therefore common practice to ensure that a licence covers every type of use that a client might ever want to make, even if they don’t actually intend to use the content in that way.  In a business to business deal, the content owner will often negotiate restrictions on the licence to ensure that it is not broader than the licensee needs.  In business to consumer transactions the terms are usually non-negotiable and, in any case, very few people actually read them.

 

Until a couple of weeks ago you could probably count the number of people who had read Facebook’s terms of service on the fingers of a very few hands but, as soon as Facebook announced the changes, more users started reading them.  Some of these users and various consumer groups realised they were rather onerous and, because we now have this amazing service that allows people to communicate so very easily, the word spread quickly (with varying levels of accuracy).  The irony of it can’t have escaped Facebook – the service that they provide allows people to group together to complain about that very service!  And, when the service is as successful as Facebook, ‘people’ doesn’t just mean a handful…  the group Facebook Bill of Rights and Responsibilities had 35,000 people yesterday, a few hours after it was created.  Today it isn’t working at all.

 

In response to the uproar, Facebook have reverted to their previous terms while they work out the best way forward.  Hopefully, now that they have the public’s attention, whatever they produce will be more akin to a negotiated business to business agreement – the rights granted should accurately reflect the rights they actually need, i.e. to use the content to provide the service.

 

The moral of the story is clear: users of online services are no longer prepared to just accept unreasonable standard terms without a fight.  If you don’t want to deal with tens of thousands of complaints, either draft your terms with the users’ viewpoint in mind…  or alternatively, don’t become too successful.

 

A few examples of the licence terms for use of user content:

 

Facebook Terms - User Content Posted on the Site

 

When you post User Content to the Site, you authorise and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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 licence (with the right to sublicence) 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 authorise sublicences of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the licence 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.

 

Yahoo! Terms Clause 8 - PUBLIC CONTENT POSTED TO YAHOO!

 

(a) For purposes of the [Terms of Service ("TOS")], "publicly accessible areas" of the Services are those accessible by the general public. By way of example, a publicly accessible area of the Services would include public Yahoo! Groups, Yahoo! Answers and Yahoo! Message Boards, but would not include unlisted Yahoo! Groups or private Yahoo! communication services such as Yahoo! Mail or Yahoo! Messenger. You acknowledge that you are solely responsible for any personal data or information that you choose to disclose and make publicly accessible via the Services, and that under no circumstances will Yahoo! be liable in any way for the disclosure and public accessibility of such personal data or information. You acknowledge that any personal data or information (or any other Content) posted to publicly accessible areas may remain publicly accessible indefinitely.

 

(b) With respect to Content you elect to post for inclusion in publicly accessible areas of Yahoo! Groups or that consists of photos or other graphics you elect to post to any other publicly accessible area of the Services, you grant Yahoo! a world-wide, royalty free and non-exclusive licence to reproduce, modify, adapt and publish such Content on the Services solely for the purpose of displaying, distributing and promoting the specific Yahoo! Group to which such Content was submitted, or, in the case of photos or graphics, solely for the purpose for which such photo or graphic was submitted to the Services. This licence exists only for as long as you elect to continue to include such Content on the Services and shall be terminated at the time you delete such Content from the Services.

 

(c) With respect to all other Content you elect to post to other publicly accessible areas of the Services, you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

 

Myspace Terms Clause 6 -Proprietary Rights in Content on MySpace.

6.1        MySpace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the MySpace Services.  After posting your Content to the MySpace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein.  By displaying or publishing ("posting") any Content on or through the MySpace Services, you hereby grant to MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the MySpace Services, including without limitation distributing part or all of the MySpace Website in any media formats and through any media channels, except Content marked “private” will not be distributed outside the MySpace Website.  This limited license does not grant MySpace the right to sell or otherwise distribute your Content outside of the MySpace Services.  After you remove your Content from the MySpace Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate.  If after we have distributed your Content outside the MySpace Website you change the Content’s privacy setting to “private,” we will cease distribution of such “private” Content outside the MySpace Website as soon as practicable after you make the change.

 

6.2        The license you grant to MySpace is non-exclusive (meaning you are free to license your Content to anyone else in addition to MySpace), fully-paid and royalty-free (meaning that MySpace is not required to pay you for the use on the MySpace Services of the Content that you post), sublicensable (so that MySpace is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the MySpace Services), and worldwide (because the Internet and the MySpace Services are global in reach). 

 

Bebo Terms - Proprietary Rights

 

Bebo does not claim any ownership rights in any Materials that you submit, post, or display on or through the Bebo Service. After submitting, posting or displaying Materials on or through Bebo or the Bebo Service, you continue to retain all ownership rights in such Materials, and you continue to have the right to use your Materials in any way you choose. By submitting, posting or displaying any Materials on or through the Bebo Service, you hereby grant to Bebo and its agents and assigns a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Materials solely in connection with the Bebo Service or the promotion thereof.

 

Without this license, Bebo would be unable to provide the Bebo Service. For example, without the right to modify your Materials, Bebo would not be able to digitally compress music files that you or other Members submit or otherwise format Materials to satisfy technical requirements, and without the right to publicly perform Materials, Bebo could not allow users and Members to listen to music posted by Members. The license you grant to Bebo is non-exclusive (meaning you are free to license your Materials to anyone else in addition to Bebo), fully-paid and royalty-free (meaning that Bebo is not required to pay you for the use on the Bebo Service of the Materials that you post), sub licensable (so that Bebo is able to use its affiliates and subcontractors such as Internet and WAP content delivery networks to provide the Bebo Service), and worldwide (because the Internet and the Bebo Service are global in reach). This license will terminate at the time you remove your Materials from the Bebo Service, except that you agree that the license will continue solely with respect to other Members' continued use of your Materials that are not music or videos (i.e. photos or skins); provided, however if you remove any of the Materials from the Bebo Service, Bebo reserves the right to remove all of your Materials from other Member's pages. The license does not grant Bebo the right to sell your Materials. (clause continues…)