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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.

Facebook chief privacy officer Chris Kelly e-mailed a little after 11 last night, writing that "we're rolling back to the previous terms of use for now and listening to some more input from our userbase and outside groups."

(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."

Users were not convinced, posting rebuttals on their own blogs--and, of course, in a Facebook group organized to oppose the changes.

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.

By Rob Pegoraro  |  February 18, 2009; 6:40 AM ET
Categories:  The Web  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Microsoft Unveils New Windows Mobile Software
Next: Facebook Faces Privacy Fears


Tomorrow another social network will come up and Facebook will end up in the dustbin of history like the previous one.

Posted by: ricotipo | February 18, 2009 7:45 AM | Report abuse

Georgetown Voice representing...

Posted by: mediajunky | February 18, 2009 9:12 AM | Report abuse

Geaux Georgetown Voice! ' ) Glad they heard the users. As a writer, I was very concerned about my notes becoming 'property of Facebook.'

Posted by: dellBelle | February 18, 2009 9:39 AM | Report abuse

An airplane will fly into a building and all the rules will change while you are looking the other way.

Posted by: blasmaic | February 18, 2009 12:38 PM | Report abuse

Of course here's a concept:

Don't put your entire life on Facebook. I'm surprised at the massive amount of personal data (and extended personal data) that many share there.

Posted by: Chasmosaur1 | February 18, 2009 1:50 PM | Report abuse

I tell all my friends that, when using Facebook, treat it as if you are broadcasting live on a radio or TV station. Don't post (or say) anything that you wouldn't mind strangers knowing. If your comments are personal and/or confidential, use regular e-mail, telephone or (best yet) face-to-face in person conversation. You remember how to do that, don't you?

Posted by: TESimonton | February 18, 2009 2:18 PM | Report abuse

Facebook (and other sites) will try again to lay claim to user content. It's just a matter of time.

Posted by: bpai_99 | February 18, 2009 2:19 PM | Report abuse

And so Facebook kills it's self. As we speak there's a group planning a new site. Easy come easy go.

Posted by: askgees | February 18, 2009 3:29 PM | Report abuse

Companies will pledge to keep your data private, until that private data is the most valuable asset they own, at which time they will change the TOS retroactively and sell the data to the highest bidder.

Posted by: JkR- | February 18, 2009 3:50 PM | Report abuse

I don't put anything important on Facebook. Of course, because of that, it's pretty useless for anything other than another way to say "Hello" to friends every so often.
But, you get what you pay for and it's free, so.....

Posted by: catweasel3 | February 18, 2009 4:54 PM | Report abuse

"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."

Well, yes and no. It's actually possible for a good drafter to make pretty much anything understandable to the average lay reader. The constraints that work against reaching this goal are generally:
1. The desire of the business/marketing people to "keep it short." We drafters have tools in our kit to whittle down the length, but they involve lots of "aforesaids," and defined terms, which seriously impede readability.
2. The desire of the intellectual property and/or litigation lawyers to address every possible contingency, no matter how likely and no matter how small the potential consequences. They have some good reasons to take this stance, but again, you either end up with a lot more words or a lot more jargon.

I guess it's just not a perfect world . . .

Posted by: OneToughCookie | February 18, 2009 5:36 PM | Report abuse

BTW, my guess would be that the attempted change to the TOS was due to a realization by somebody at F/B that it was virtually impossible to purge all of a member's posts, due to the nature of F/B, and thus impossible to assure that something they no longer "owned" was never used. (As opposed to wanting to possess rights to all that groovy content for all time.)

Posted by: OneToughCookie | February 18, 2009 5:41 PM | Report abuse

It's all just oversharing to me. I looked at Facebook a couple of's just not my cuppa tea

Posted by: tbva | February 18, 2009 8:19 PM | Report abuse

Is it MOSTLY younger people who are still naive enough not to have something put into a public domain not come back to bite them YET ???

There is a reason that IMPORTANT matters are not communicated by governments and major commercial interest around the world in 'clear text,' but are instead encrypted.

What you may like to see in the ++++ public domain ++++ Today, you may be HORRIFIED by in another 5 or 10 years.

Just because you take something off of Facebook, etc. doesn't mean that it has disappeared, as US Marine Colonel Clark learned the hard way at the White House.

Be assured that predecessor groups to the KGB regularly scan Facebook and other public domain posting, so that IF THEY NEED TO BLACKMAIL YOU SOMEDAY, they will have what it takes to do the job.

Posted by: | February 18, 2009 10:47 PM | Report abuse

And since you may still consider yourself as too inconsequential to be potentially BLACKMAILED, then think of your fanily, relatives and close friends.

During the USSR, TOP SECRET security clearances were routinely denied to those who had relatives behind 'the Iron Curtain' for a reason. The reason was what is going on in numerous drug cartels around the world today, namely kidnap someone, either for ransom, or for a specific dirty act. Sometimes entire families get wiped out by these types.

I wounder just how much information comes off public domain sites when these events occur. DO YOU REALLY KNOW WHAT ALL MEMBERS OF YOUR FAMILY ARE DOING ALL THE TIME. ARE YOU WILLING TO BET YOUR LIFE ON IT ???

Posted by: | February 18, 2009 10:57 PM | Report abuse

For more about some of the difficulties inherent in drafting a contract that is user-friendly and legally appropriate, you can check out this post at

Posted by: OneToughCookie | February 19, 2009 11:51 AM | Report abuse

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