The Facebook Freakout

So people are freaking out about Facebook thanks to this story on The Consumerist.

I'm curious about it because the whole thing just, well, seems ridiculous. For one thing, I continue to find it baffling that people feel as though they can control works of intellectual property uploaded to sites that are indexable by search engines. One of the reasons I'm still a livejournal user is the fact that I can keep posts there locked and off of google.

Up front I should probably say something that Chris Walters, the blogger and chicken little at The Consumerist who apparently started this panic, didn't say in his article. I am not a lawyer and no expert on intellectual property rights. I did however study intellectual property rights and have about as much knowledge of the byzantine nonsense that is US copyright law as any layman can claim to have. I also, apparently, have a greater level of reading comprehension than Mr. Chicken Little Walters and the various other barnyard animals who have been parroting his "OMG DUDES FACEBOOK PWNS ALL YR STUFF NOW" conclusion in the above blog post.

Of particular importance is the part of the Facebook TOS that the sensationalist boobs at The Consumerist failed to read completely. Below you will find the entire relevant section of the TOS quoted in full, emphasis mine:

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.

So what does this mean. Well first of all, if you upload something on Facebook you are granting them a license to the work, not ownership. The license is very far reaching and all inclusive as to what it grants, that is, the right to "use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works, and distribute."

That's, frankly, kind of ridiculous language. I will point out that under US law, there are five basic rights that an author has by virtue of copyright:

1.) The right to reproduce the work
2.) The right to make derivative works based on the work
3.) The right to distribute copies of the work
4.) The right to publicly perform the work
5.) The right to publicly display the work

Basically, what the Facebook TOS license says is that by uploading works to that site, or by allowing works to be Share Linked to the site, you are granting all those rights to Facebook as well. They can also sublicense these rights, which means that they can assign the rights granted to them by the license to a third party. So does that mean that you are basically giving the copyright to facebook? Well, no. Sorry chicken little.

Note the bolded section of the above quoted portion of the Facebook Terms of Service. You are only granting those rights "on or in connection with the Facebook Service or in the promotion thereof." What does that mean? Well, it means that you are licensing the use on Facebook branded websites or any other media and the Facebook Platform, which is the legal name for the APIs that allow third parties to create Facebook applications. So if there was a Facebook TV show, they could use your stuff on that. Or if they launched a Facebook concert series or a Facebook magazine, they could use your stuff in that. Presumably, if there were a Facebook dogfood, they could use your content on that. Or if they wanted to make an advertisement FOR any of those things, they could use your stuff in that. Precisely WHY Facebook would want to do any of those things, I leave to the reader to speculate on. What they most emphatically CAN'T do is what Walters claims, that "We can do anything we want with your content forever." They can do anything they want with your content ON Facebook or to Promote Facebook forever. But if they said that it probably wouldn't cause the internet panic and generate hits for the consumerist and readers to stroke Walter's ego with diggs and trackbacks and twitterposts either.

Which, of course, is just irresponsible journalism. Which brings me to a bone of contention. Every once in a while some traditional journalist will write an article decrying the lack of journalistic standards in the blogosphere. This generally leads to a bunch of nonsense in the blogosphere about how good bloggers are about things. Which is generally true. There is particularly a lot of opinion writing on the blogosphere that is as good as or better than the Op/Ed work that goes on in traditional bricks and mortar media. As this article by the consumerist shows, however, the blogosphere and it's groupies have a long way to go before real journalistic reporting standards are met. Where in the article is the invitation for Facebook to clarify or make comment that would be a matter of course for a television, radio, or newspaper report on the same issue? Apparently, Walters didn't even attempt to contact Facebook to get a comment on this aspect of their terms of service. Nor is there an expert in intellectual property consulted to clarify precisely what the information provided means. All we get is Walters shooting his mouth off about what he thinks. And who exactly is Chris Walters? Well, frankly, I have no idea. There's no information about his background or identity on either the Consumerist or on his personal website which can be found via google. Apparently, he's yet another goon who has decided that the democratization of information has elevated him to the status of pundit. Which is nothing new of course. These sorts of delusions of grandeur are unfortunately common these days and are found in a range of individuals stretching from the likes of Nick Mamatas's disinfo.com style lunatic fringe tirades, to Anne Coulter's millions selling books full of lunatic fringe tirades.

What I find truly ironic is that no doubt the same people who are now causing all the hoopla about Facebook's perfectly legal if kind of crass overreaching Terms of Service are the same folks who on another day would be trumpeting Stallman style Free Software, or ranting against the latest DRM or RIAA lobby to extend copyright protection or shut down filesharing sites. No doubt all these people who are terrified that Big Brother is now going to use their kids photos to instigate right wing counterinsurgencies in the third world or whatever have hard drives full of pirated music and video downloaded via bit torrents and thereby stolen from people who have intellectual property rights that are actually of some real value, which, frankly, all yr crap on Facebook is not.

The fact of the matter is that we live in an age where information is cheaper, easier to find, and easier to pass on than it has been at any point in human history. But with that freedom comes the responsibility to use it wisely, to think critically about it, and moreover to conduct ones activities in a manner that is both ethical and internally consistent. So delete your Facebook account in protest if you like, but maybe while you're at it you should wipe out all those pirated episodes of the New Doctor Who on your file drive as well.

Update Ed Champion just made an important point on Twitter that I wanted to address. Yes, Facebook didn't do themselves any PR favors by slipping the change about the perpetuity of the license granted in with their recent "clarification" of their terms of service. In an age when the lack of corporate transparency is repeatedly bringing powerful companies to their knees, you would think some of these goons in corporate america would learn their lesson and start behaving themselves a little better rather than just running rampant and trying to do whatever grasping annoying thing they think they can get away with. To be clear, I think the license that Facebook claims in their terms of service is overreaching, inappropriate and unnecessary. As I pointed out to Andrew Baron at Rocket Boom, I just think it's idiotic that hordes of Facebook users, many if not most of whom are regularly participating in all manner of digital piracy, are now all aflutter with the fear that Facebook is going to steal all the money they could be making by selling pictures of their cats.

Update 2 More wild conspiratorial speculation from MediaVidea via edrants about what the freemasons at Facebook are up to:

What can Facebook can do with your information once you are out?
Here are some ideas:
1. Sell your information to marketers, market researchers, basically outsourcing the spamming job.
2. Mine and re-purpose your data - pictures, quotes, links...or, sell them to startups who want to seed their website. BTW, this will be the last thing they will do before switching off the lights.
3. Pore over your relationships - your boss, your company, your friends, your family and spam them as well.
4. Provide your contact data to snoops, recovery agents, government agencies for a fee.
5. Sue you for publishing your own article, pictures elsewhere.

Well, maybe. The first one they could do if they were doing it to promote Facebook or Facebook features or services only. The second one, same thing. The third one, same thing. The fourth one, no they couldn't, that would have nothing to do with Facebook Services and Features and would not be promotion thereof. And the fifth, well, that's just goofy. None of the rights in the license granted by the Terms of Service makes those rights exclusive to Facebook. Authors can still do whatever they want with their material and Facebook doesn't have any say about it at all. This sort of nonsense is precisely the problem with the Chicken Little approach to bad things. Yes, the TOS are stupid and greedy. No, Facebook will not be eating your firstborn baby with legal impunity as a result.

Update 3 Also via Ed Champion, here is a more measured account of the situation:

Andy on the Road correctly notes that the only real difference between this license and the license YouTube uses is that Facebook users are unable to revoke the license granted by the Terms of Service. He also makes the interesting point that had also occurred to me that these terms of service may make it very difficult for Facebook to offer popular content from valuable media authors like major television, film, and music entities since people already making money from their work are unlikely to want to give Facebook a nonexpiring piece of their pie which they have no right to revoke. Note the difference in tone and the more realistic speculation about what the TOS actually mean here in comparison with the original Consumerist article and the post from MediaVidea.

Update 4 Ed Champion just noticed that Fox News has picked up the story and quoted him in it (without contacting him). Notably, Fox makes the same error that The Consumerist does, speculating that the new TOS give Facebook ownership of user's work forever for whatever and amen. Since Fox is such a paragon of Journalistic integrity, clearly I must be in the wrong.
What's that?
Fox is the worst kind of sensationalistic lazy journalism and the guys that work their are a bunch of unprincipled hacks?
Oh.
Well, Nevermind.

Update 5
Just found out this was linked by the New York Observer blog post about the issue. Hello to new folks!

Comments

Ordinarily, I would agree

Ordinarily, I would agree with you about Walters's failure to contact a Facebook representative. But in this case, we have very specific language to work from.

Why WOULDN'T Facebook do precisely what Eric Bauman did? Bauman, as you recall, took the content that other people created, hosted it on eBaum's World, and profited without distributing the money back to the people who created it. That is the scummiest of business practices. And it runs counter to the open distribution of content, if we can all accept the ideal model accounting for rights and sharing to be a Creative Commons license. When you upload a YouTube video and it becomes a hit, Google (most of the time) ensures that the content producer is involved with revenue, and there are options to control HOW the content is used in relation to YouTube. But the Facebook language here clearly dictates that you are giving Facebook an irrevocable and perpetual right to distribute and make derivative copies of content you upload to Facebook for ANY purpose. ANY. Whether it be a book, a film, or whatever other options Facebook may have cooked up. And that could very well extend to a wide range of options. Recall Alison Chang, who saw her Flickr photo turned into a Virgin Mobile advertisement without her consent. I don't want my likeness being used for advertising "for any purpose" without my consent. Now granted, I agree with you that we're assuming that "on or in connection with the Facebook Service or the promotion thereof" will be interpreted fairly broadly. (Actually, the trickiest bit here in the paragraph is the final sentence, which conflicts with the previous sentence. If you've already granted Facebook the irrevocable right to give up your content, then how indeed do you have "all rights and permissions?") But since Facebook seems to have no problems sharing private data with developers, their history suggests that this same invasive latitude will carry forth under the new Terms of Service.

I think that's the real problem

my beef isn't that I think the Terms of Service are all well and good. Clearly this is precisely what Facebook is planning ie to use user content in their marketing and promotions of themselves. Again, I don't know WHY they would want to do that as even if they win in court, they're already struggling financially and the last thing they would want is the negative publicity of being seen to exploit some cute girl in service of Mammon. Even though what they did was legal, a big story in the press like that would be the last nail in their coffins. That having been said, there's no accounting for corporate greed and it's certainly true that corporations are capable of being very stupid in their pursuit of added shareholder value.

really, though, my issue is with the wild and fantastical nature of the speculation about a.) a real threat to the average facebook user, most of whom will never have their information or content used by facebook for commercial gain in an way, and b.) the irresponsibility of so many paranoid types freaking out about possibilities for use that just aren't there under the TOS.

Questionable....

Hmn.

So let me get this straight. You have a beef with Walters in that you feel that he engaged in wild speculation and may have overstated the problem; an opnion that may well owe itself to your perception, however at no time before you decided to engage in your own overwrought finger-wagging and leveling of accusations did you feel the need to go to the source of your contention for clarification? Because it's entirely possible rather than playing Chicken Little, he interpeted the wording of the TOS in the same way many of his readers would have been likely to. He's not a lawyer any more than you are.

Now for all your ranting about paranoia and whatnot, you seem to have assigned way more to Walters' story than was actually there, and ironically, you did so without having contacted the source to seek clarification. Funny, that.

All that aside, I would have thought that the pertinent thing to have taken from his story would have been that Facebook made a pretty substantial alteration to their TOS, one that states that your shit is theirs even if you kill your account, and that there wasn't any reasonable attempt made to alert their users to this beforehand. Furthermore, this TOS flies in the face of their own privacy settings, which calls into question whether or not your private content really is private. What they're going to use it for is superfluous, and besides, Walters didn't engage in any speculation to that end. He just said that if you have something you don't want Facebook holding onto, you're better off not posting it there.

Now I've seen people going on and on about how this TOS isn't different from that of any other site, but Facebook is the only one I know of that keeps your shit even after you've killed your account. And you know, while this may never end up affecting a large number of Facebook users, they still should have given us all the option to opt out if we weren't comfortable with it. They basically steamrolled their members into accepting this TOS, and that's shifty and shady, which is exactly the sort of thing The Consumerist covers by the way.

At any rate, the TOS is certainly open for interpretation, and unfortunately we won't be in a position to know whose interpretation of the TOS is correct until somewhere down the road. Though if Facebook is really as financially troubled as you suggest, then it seems as if Walters' may not be too far off the mark. You know, being that data-mining is such a lucrative field and all. You may never see your pictures in Facebook-branded literature, but I wouldn't be surprised if some telemarketer or another started calling any day now. We basically agreed to it, no?

1.) I don't have to go to the

1.) I don't have to go to the source with chris walters, because I'm writing criticism, not journalism. There's a difference.

2.) I never said Facebook is no different from any other site.

3.) I did in fact say that their TOS are overreaching and crummy.

4.) What I did point out is what you STILL fail to have grasped, which is 2 and 3 being granted, Chris Walters (and you apparently) still don't think that's enough to work with, and it certainly isn't news since Facebook did THAT a long time ago, so you (and he) have to cook up this extra bullshit about datamining for telemarketers and 'they can do anything they want with your data forever and ever' when it just isn't true. If at some point, the clause highlighted by this article is removed, then maybe you have a point. But until then, you're just being a hysterical idiot.

Ah, you don't have to go to

Ah, you don't have to go to the source because all you're doing is bitching about shit. Gotcha. Of course when a major component of your complaint is that the blog in question failed to do proper research and is inciting paranoia, you'd be better served to make a reasonable effort to go to the source for clarification instead of wagging your finger at them based purely on a self-serving assumption of what their intentions were. Of course to do so might rob you of an outlet for your tireless bitching, and God forbid that, right?

Anyway, you've illustrated your lack of comprehension skills rather thoroughly here, and I have no other choice but to chalk this knee-jerk bitch-fest up to that. I don't think it's so much that Chris Walters was fanning the flames of paranoia. The story in question tells a very different tale altogther. No, I think the problem is that you didn't bother to read beyond the admittedly over-the-top headline, or you simply lack the ability to comprehend what you read as is clearly the case with my post.

Furthermore, you seem to want to take a contrary opinion simply for the sake of it, when the reality is that you have absolutely no idea what this means for any of us. Granted neither does he, but I wouldn't take issue with your knee-jerk reaction to his post if it didn't seem so self-serving and presumptuous. And while I couldn't give half a squirt of piss about the Consumerist, I do have a problem with twits who go on about a lack of journalistic integrity and then engage in the same sort of behavior themselves. That you would attempt to excuse it on the premise that you're just a critic makes you look like an even bigger douche-bag.

The thing is that no matter what you want to label yourself, you have an obligation to verify whether or not what you're pissing and moaning about actually has any roots in reality. Otherwise you have no leg to stand on. You're engaging in the same sensationalism that you accuse them of engaging in, and no matter what you call yourself, that dilutes the strength of whatever point you think you're making. Of course most people are idiots, and you'll continue to persist simply because people lack the ability to cut through the bullshit, but you're ocassionaly going to encounter people like myself, and we're not going to stand for it any more than you're standing for what you accuse The Consumerist of doing.

If you're going to bitch, make sure your nose is clean. Otherwise just keep it to yourself.

this is yr last freebie without registering

because you are getting dangerously close to trolling.

what i mean by that is that you're plainly talking nonsense in order to pick a fight. I don't have the time or the patience for flame wars with jackasses, so unless you want to have a real conversation based on what's actually been said, this is your last get out of jail free card.

Now, to respond to this last comment:

your contentions are

1.) I'm guilty of hypocrisy because I said that Chris Walters should have asked Facebook for comment, whereas I did not ask him for comment on the post I wrote about his post.

2.) I am wrong in my understanding of what he wrote. You say: "I don't think it's so much that Chris Walters was fanning the flames of paranoia. The story in question tells a very different tale altogther."

Stripped of all the flamebaiting hyperbole, that's about the long and the short of it right?

Well, you're wrong.

I read the whole article. It's not long. It doesn't say much. It does however, say what I claim it says, that, to paraphrase myself, Facebook gets your rights in perpetuity to do whatever it wants.
from the article:
"Make sure you never upload anything you don't feel comfortable giving away forever, because it's Facebook's now."

That's the last sentence of the article, where Walter's clearly states his conclusion that the TOS result in you giving away your property to Facebook forever.

Nowhere in the article that I can see, does he back away from that very strong position prior to the updates he made after people started jumping on the bandwagon and noticiing that he was full of it.

Now, as to the first point about why Chris Walters is a Journalist and I am a Critic and why that makes our responsibilities different:

A Journalist writes what he claims are true facts representing the real state of things to a reader.

A Critic writes what he claims is his interpretation of a text and states what he thinks the effect of that text is and whether he thinks it does what it is supposed to.

A Journalist, given that he is representing something as objective truth, real facts, stuff going on, aka News, has a responsibility to do what he can to make sure that he gets it right. When reporting a story like this one, a responsible journalist should 1.) check with the company he's reporting on to see what they have to say about it and 2.) check with an expert on the subject matter to make sure that the specialized information is reported correctly. Chris Walters did neither of those things, and the result was a piece of Yellow journalism that was trumpeted all over the blogosphere as "the real true facts that facebook owns all yr shit now, better delete yr account before they can swipe more."

A Critic, given that all he is representing a reading as his considered opinion, interpretation, subjective truth, stuff as it comes across or is performed, aka criticism, has a responsibility to avoid contact with the author in order to maintain his objectivity. If I went to Chris Walters and said, hey pal, do you really mean that Facebook owns all yr shit? what about the fact that it doesn't really say that? and he backpedaled and said "oh, hey, yr right." like he has since done on the consumerist with the updates to the article, then I'm not doing the critics job, I'm in fact just being his editor. A critic, by contrast, takes what is published at face value, looks at it, and uses it as his evidence for the reading and interpretation of it. That's what I did here. I paraphrased, quoted, and noted what was omitted by the original aritcle which allowed them to draw the incorrect conclusion. This is based on inference and interpretation of a text which is there for anyone to read and draw their own conclusions about. I linked it in the article so people don't have to take my word for it. They can go see for themselves if it says what I say it does. As I've shown with the quote above, it DOES say what I say it does, so your countercritique here, which is based on my supposed hypocrisy and my alleged failure to read the article correctly, is now shown to be empty.

I hope that's clear now.

If it isn't, register an account and stop acting like a troll and we can have a civil conversation about it.

Otherwise, get thee behind me Satan.

What Concerns Me...

If your nonconcern of this issue. Facebook's users will not take this news in a friendly manor, because it's wrong. When my clients update their TOS, their customers/users are automatically asked to agree to the NEW TOS and clearly display the changes. I recommend this to me clients because their relationship with their users is important. Facebook seems to not have this same philosophy, which is sad. Although I will not delete my account (hah, I mean my ability to log in), I am taken aback by Facebook's seemingly arrogant attitude toward this entire issue.

oh no doubt it's a mistake

oh no doubt it's a mistake and they've gone in the wrong direction. but hysteria and hyperbole annoy me just as much as that, if not more.