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.
Fox is the worst kind of sensationalistic lazy journalism and the guys that work their are a bunch of unprincipled hacks?
Just found out this was linked by the New York Observer blog post about the issue. Hello to new folks!