Facebook's TOS Fumble

One big story of the day was Facebook's new and improved terms of service which this Consumerist post flagged and which set off a firestorm of controversy:
Facebook's terms of service (TOS) used to say that when you closed an account on their network, any rights they claimed to the original content you uploaded would expire. Not anymore.

Now, anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later. Want to close your account? Good for you, but Facebook still has the right to do whatever it wants with your old content. They can even sublicense it if they want.
What Was Facebook's Mistake?  Facebook could have avoided much of the controversy by providing its users some advance notice of the upcoming changes.  As intimated by this cNet post, Facebook's terms first saw the light of day in a Facebook blog post which was then noticed by Consumerist (and took off from there).  Facebook could have probably avoided all of this (which probably will not amount to much anyway, but which makes Facebook look bad and somewhat exacerbates their trust issues with users) by giving its users a heads up.  Better yet, it could have involved its users in the process.  That may open up some practical issues when it comes time to enforce the terms, but it sure would have avoided the PR snafu.  The real lesson from the Facebook TOS saga in my opinion: at least give your users the heads up on upcoming changes and if you want to be touchy feely about it, actually involve them. 

What Did They Change?  Initially I thought people were making a big deal out of nothing and incorrectly reading the new terms much more broadly than they are drafted.  A big change that most people are (I think incorrectly reading) into the new terms is that Facebook is now claiming ownership of content which users upload.  Facebook is just getting a perpetual license to the content so that if you delete your account they can continue to display the content.  This isn't really the end of the world to be honest, and is a simple change that their lawyers probably recommended in order to address the situation where a user cancels their account and Facebook is slow to remove the content (or the content is somehow sitting out there).  (Facebook has clarified that the "license" will be exercised in accordance with the privacy settings of the user.  I guess this means that if the user sets their page to "friends only" Facebook cannot display the content beyond this.) 

One other term is that I think changed is the italicized portion below:
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.
Basically, users grant Facebook a license to their likeness and image for advertising purposes on or in connection with the Facebook service.  If Facebook wants to use your mug on a television advertisement, this language lets them (theoretically).  Really, who among us would not want to have our likeness used in a Facebook ad?  (On closer look, the above language seems somewhat convoluted since a photograph submitted by a user is content which according to Facebook can only be used in accordance with the user's "privacy settings".  The personality/publicity license seems fairly useless if the accompanying content license is much more limited.)  [I'll try to take a closer look later.  Someone should post a redline comparing the two versions.]

Other procedural changes are flagged here.  As Max Kennerly points out, the new terms contain a California choice of law provision (as opposed to Delaware).  The new terms tweak the notice provisions and remove the class action ban (in response to widespread judicial antagonism towards these types of provisions, including in the Ninth Circuit). 

* * * *

Of course, many have pointed out that people are likely over-reacting.  For example, Kara Swisher has a post titled "You Have No Privacy Anyway".  I also particularly liked this pictorial explanation

Update:  shockingly, Facebook responds to the user uproar, and restores its old Terms of Service while it looks into the situation - wow!:

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  • 2/22/2009 2:48 PM coffee wrote:
    the fact that Facebook change their TOS back so quickly is an indication that they knew they were doing something wrong, or at least "a little off"
    Reply to this
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