Facebook Retreats on Terms of Service
After a long weekend of increasingly bitter reaction to recent revisions of its "terms of service," Facebook hit the Undo button on the changes late last night. It reinstated the previous terms and said it would take some time to hear its users.
(Disclaimer: As you can see from my own Facebook page, I've known Chris since college, where we worked on the same school paper.)
The offending item in Facebook's Feb. 4 revision to its terms of service--"TOS" for short--was a long paragraph that made some sweeping claims to the words, pictures and other media uploaded by Facebook users:
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.
The older, now reinstated terms of service made many of the same claims but also included these sentences:
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.
As Facebook users soon realized, the new TOS said nothing about what would happen to their data if they canceled their accounts. The Consumerist blog summarized the changes as "We Can Do Anything We Want With Your Content. Forever."
Facebook founder Mark Zuckerberg semi-apologized for the new phrasing in a blog post, calling them "overly formal" while insisting that "In reality, we wouldn't share your information in a way you wouldn't want."
The company's management seems to have decided this was an argument it could not win. Smart move, but we'll have to see what it does next. Will the next TOS revision be written only for lawyers, or for the Facebook user base at large?
As I asked in an e-mail to Chris Kelly yesterday: "When these terms were drafted, were they not assessed with an eye towards how they'd look to the general public?"
I'm sympathetic to the people who have to write these documents. Writing something that will stand up in court, even against the loopiest litigation, is not easy, and it's not always possible to do so in language that looks right to laypeople. (For several years, my job here involved asking outside writers to agree to the moderately tangled legalese in the Post's standard freelance agreement before I could assign them any stories.)
But the costs of bad publicity can be a lot higher than the hourly rates for whatever legal help is needed to slap down a frivolous lawsuit--which could happen regardless of how airtight a site's contracts might be.
An hour or so after the rollback of the terms of service, Zuckerberg posted a new item on Facebook's blog. He pledged that the next revision of the terms would, in fact, be written for people without J.D. degrees, and with the help of individual Facebook users:
Our next version will be a substantial revision from where we are now. It will reflect the principles I described yesterday around how people share and control their information, and it will be written clearly in language everyone can understand. Since this will be the governing document that we'll all live by, Facebook users will have a lot of input in crafting these terms.
The post closed with an invitation to join a new group, "Facebook Bill of Rights and Responsibilities," to discuss these changes.
If all 175 million-plus Facebook users join in, it may take a while to see some sort of consensus emerge from that conversation. But one unambiguous upside does seem clear in all this: People won't take "trust me" for an answer and are actually reading these documents, then trying to hold the corporations behind them accountable.
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