This whole Facebook Terms of Service thing

An interesting tweet appeared on my updates list just now:

tweet

I’ve loosely followed the whole thing about the recent change in Facebook terms of service, and the change back again. I read Mark Zuckerberg’s blog in response, and the one announcing the revert to the original terms. Overall I was impressed by the honesty and upfront nature of his response and admission that the legalese that their terms are written in is frankly insufficient for people to actually work out what on earth they meant.

The request above came from a good friend (why else would I have photos I took at their wedding) and I have honoured it. Not out of disgust at the actions of Facebook, but because I value a friendship more than I do the opportunity to make a point (that’s what this blog post is for instead!) I do however think it is a perfect example of the disjoint between people’s expectations of the ownership and privacy of content on the web, and the ways in which we currently try to encapsulate the rights associated with the various parties involved.

Let’s look at a few facts:

1. The photos were taken by me at my friends wedding, at which I was a guest.
2. The wedding was held on private property – in this case a hotel.
3. The law says I own the copyright to the photos
4. Would I ever want to use them commercially, I would need to clear that with the owner of the private property they were taken on, and, if for non-editorial purposes, get releases from anybody in them (mainly my friends)

The trouble is that what the law says, and what people expect are two different things. My friend obviously believes he has a moral assertion over the photos, being as they are a record of what is one of the most important days of his life. I can’t reasonably argue with that, but the law doesn’t see it that way – they are mine to do with as I wish.

But let’s look at the other side of the picture, as that what’s under the microscope with regards to Facebook. Wanting to share my photos with my friend (and our mutual friends) I posted them onto Facebook. People liked them and that’s great. I could have posted them onto flickr, Smugmug, Picasa or even onto my own web site (actually, I did, and there’s a link to an album running right here in another of my blog posts…) By posting them to Facebook I placed a certain level of trust in Facebook to “do the right thing” with regards to the content I was asking them to store, and to distribute amongst my social network. Did I read the full T&Cs when I signed up? Did I heck. Did my friend? I wager not. Had I read them way back then, I would have seen this:

When you post User Content to the Site, you authorise and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide licence (with the right to sublicence) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorise sublicences of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the licence 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.

Chase Jarvis, a world-renowned commercial photographer who uses Facebook to distribute content for PR and his fans has written a much better analysis of the old and new terms than I could, so I’m not going to go into detail about what that long paragraph contains, or the important change that was made, causing the uproar.

It may seem stupid that Facebook have such wordy, hard to understand terms, and indeed it seems that they go well beyond what would reasonably be needed for them to receive and permit the sharing on user generated content. In the past I have berated other organizations for similar wording, not least the BBC. However in those examples my concern has been about the use of such terminology as a way to sucker unsuspecting citizen journalists to give potentially timely and valuable content up freely, or as a competition only vaguely hiding an obvious rights-grab attempt. Indeed this blog carries a logo and link to the EPUK fair play campaign for citizen journalism for just this sort of thing.

So, the question is do I really think that Facebooks terms represent a realistic threat to my content? Are they *really* going to take what I share on Facebook and use it for profit, resell it to other organizations, or other such actions? In short, are Facebook evil? I don’t think so.

I have personal experience of what happens when the lawyers get involved between two parties wanting to do something logical and simple. I’ve seen this through my own work, spending months working with a third party, with code written and ready to go, waiting for the lawyers on both sides to argue over single clauses and being asked how such clauses affect the technology (normally not at all) What Facebook are guilty of (and admit to) is that they haven’t done a good enough job of turning the legal crap into understandable principals that you and I can make informed decisions on.

Regarding the change in terms (which basically removed the ability to revoke the licence you give them when you delete content – something I have now done with my photos of the wedding) I honestly believe that there is no realistic chance of Facebook ever asserting those rights granted in the way that people are reading into it. As Chase states, it is there to allow them to effectively share content amongst their user base. I’d also wager it is there to cover their arses should the fact that the massively distributed, non-normalized data store that sits behind Facebook doesn’t manage to delete the hundreds, possibly thousands of copies it stores of every photo, video or other piece of content you contribute.

The only unfortunate thing is that there is no filter between what they have to get their lawyers to draw up and what they present to their users. It makes no promises back to the user.

Let’s use an analogy. In the UK there is an organization called the Plain English Campaign. They award a crystal mark award to clearly written documents. It is common to see this mark on things like insurance documents. Over recent years, there has been a distinct attempt to make many forms of legal-related documentation more understandable and consumable by the lay-man, much of it driven by the initial work of this group. Their FAQ includes this:

Who are the worst offenders for gobbledygook?

In our experience, the legal profession and finance industries cause the most concern. Many companies have worked extremely hard to use plain English, but these industries will always be our main targets. Plain English is about language affecting ordinary people’s lives, and people have the right to get the information they need to make informed decisions about money and the law.

One example of improved communications thanks to such efforts can be found in the UK mortgage industry. Any mortgage product must have a Key Facts Illustration document that has two important purposes:

  • To enable the consumer to carefully evaluate and consider the product before committing to it.
  • To allow the consumer to effectively compare different products in the marketplace

The KFI is a clear, concise document outlining the most important points, in plain English. Now, what if Facebook’s terms were presented in this manner? Would I have read them? Yes. Would I have considered if I was happy with them before accepting? Yes. Would I understand the true intent behind them better? Almost definitely yes.

Now, what if we had a similar initiative for the web, for the world of social computing? Well maybe, just maybe this whole episode may provide the catalyst for that to happen. Recently I had the opportunity to speak with a couple of folks from dataportability.org At the time I wasn’t quite sure what to make of the organization or their goals, it seemed broad and lacking distinct focus, but one thing that did stand out was their desire to build a charter for the social web. It seems that now is the time to grasp the nettle and drive this forward and I really hope that their EULA and TOS task force can be the agent of change for this whole problem. Daniela’s and Elias’ blog posts give me a warm feeling that they just might head in the right direction with this. I hope Facebook jump on board.

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