What Facebook’s revised terms of use mean for your content

facebook-privacy1.jpgThere is quite a buzz about Facebook’s revised terms of use and what those terms of use mean to users and their content. There is good reason to be concerned, in part, because Facebook is one of the most popular social sites on the Web today and a substantial number of people use Facebook as their photo, video and other content sharing service. Before continuing I’d like to refer you to two posts I published a while ago about Facebook’s terms of use and privacy policy then in place. It is a good idea to read these two posts before continuing with this one:

There are a few key sections which you should be aware of in particular because these sections determine what can be done with your content. I have recorded a brief commentary of these provisions which you can listen to using the Zoopy.com player below while you read the terms I have quoted below:

Terms of Use

Date of Last Revision: 39848.

Welcome to the Facebook Service, a social utility that connects you with the people around you. The Facebook Service (defined below) is operated by Facebook, Inc. and its subsidiaries and affiliates (“us,” “we” or “Facebook”). By using or accessing the Facebook Service, 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 the Facebook Service after any such changes constitutes your acceptance of the new Terms.

User Content

By using or accessing the Facebook Service, you represent, warrant and agree that you will not Post:

  • User Content that violates the law or anyone’s rights, including intellectual property (“IP”) rights or other proprietary rights (such as rights of publicity and privacy);
  • any Contact Information or private information of any third party;
  • false, misleading or fraudulent information;
  • any material that contains software viruses or any other computer code designed to interrupt, destroy, or limit the functionality of any computer or telecommunications equipment;
  • alcohol-related or other mature content on Pages on the Facebook Service that have not set appropriate age based restrictions (based on the country in which the page will be viewable); or
  • User Content that is threatening, hateful, racially or ethnically offensive, or that depicts nudity, pornography or graphic or gratuitous violence, or anything else that we may consider offensive.

Facebook does not pre-screen, review, edit or approve any User Content. Facebook may, in its sole discretion, remove or disable access to any User Content.

“User Content” means any photos, text, link, audio, video, designs, ads and anything else that you Post on or through the Facebook Service. “Post” means to upload, post, transmit, share, store, link to or otherwise make available on or through the Facebook Service.

Licenses

You are solely responsible for the User Content that you Post on or through the Facebook Service. 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. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

Termination and Changes to the Facebook Service

We may terminate your account on the Facebook Service, delete your profile and any User Content you have Posted on or through the Facebook Service, and/or prohibit you from using or accessing the Facebook Service (or any portion thereof) for any or no reason, at any time in our sole discretion, with or without notice. Further, we reserve the right to change any aspect or feature of the Facebook Service at any time without notice. The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.

The focal point of the terms of use is the Licenses section. It flows from the provision in the introduction which says that by continuing to use Facebook you agree to revisions of the terms of use and from the definitions of “User Content” and “Post” which are key terms. The license which you, as a Facebook user, grant to Facebook is very broad and it covers not just your content on Facebook but content you may have linked to from outside Facebook. What the terms don’t do is grant ownership but the license is so broad Facebook may as well own your content. What alarms me the most is that Facebook takes a license to the content you may only link to on Facebook and don’t upload to the service. This covers photos you may have stored on Flickr, videos on Zoopy or Vimeo and more. This virtual land grab makes these terms of use a particularly invasive set of permissions.

As some people have pointed out, even terminating your account with Facebook has no effect on the license you grant except that it obviously won’t apply to any future content you publish elsewhere and would otherwise perhaps link to on Facebook. What is also worrying is that this license could easily be at odds with any other license you may have applied to your content elsewhere and it would seem Facebook expects their license to be the dominant one. An example of where this is a problem could be blog posts you import into Facebook which may be licensed under a Creative Commons Non-Commercial license, for instance, and yet the license you grant to Facebook allows for commercial use of that content. Don’t forget about you also granting Facebook the right to use your photos and videos in its advertising campaigns …

In comparison Google includes the following license in its terms of use:

11. Content licence from you

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, adapt, 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, organisations 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.

This license is similar in that the license you grant is fairly broad and Google’s terms provide that where you have granted rights to Google indefinitely, even closing your account with Google altogether doesn’t affect that license term. The license you grant to Google doesn’t go quite as far as Facebook’s but many of the elements commentators are concerned about in Facebook’s terms of use are in Google’s too. That being said, Google’s license doesn’t include a license in respect of content you link to using Google’s services and its stated purpose for the license is to facilitate your use of its services.

What I found really interesting is that, unless I missed something, Plaxo doesn’t seem to include a license from you to Plaxo in respect of your content in its terms of use. It grants its users a license to certain of its content and intellectual property but doesn’t appear to take a license from its users. This shouldn’t be surprising considering Plaxo’s commitment to keeping content ownership and control in the hands of its users.

Onerous terms of use are not unusual on the Web but Facebook’s terms of use go further than Google’s and certainly much further than Plaxo’s, a possible competitor for Facebook’s users in the near future. If anything the buzz around Facebook’s terms of use should be a reminder of the importance of reading the terms of use and privacy policies that apply to these services so you at least know what you are giving away.

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