You have seen them if you are on Facebook, and perhaps even posted one yourself. I’m talking about the statements that aim to defuse Facebook’s new terms of service, which are claimed to take away copyright to stuff you post. To summarize it shortly, the virally spreading disclaimer is meaningless from legal point of view and contains several fundamental errors. But I think it is very good that people are getting aware of their intellectual rights and that new terms may be a threat.
Terms of service? That stuff in legalese that most people just click away when starting to use a new service or app. What is it really about and could it be important? Let’s list some basic points about them.
The terms of service or EULA (End User License Agreement) is a legally binding agreement between the service provider and the user. It’s basically a contract. Users typically agree to the contract by clicking a button or simply by using the service.
These terms are dictated by the provider of the service and not negotiable. This is quite natural for services with a large number of users, negotiating individual contracts would not be feasible.
Terms of service is a defensive tool for companies. One of their primary goals is to protect against lawsuits.
These terms are dictated by one part and almost never read by the other part. Needless to say, this may result in terms that are quite unfavorable for us users. This was demonstrated in London a while ago. No, we have not collected any children yet.
Another bad thing for us users is the lack of competition. There are many social networks, but only one Facebook. Opting out of the terms means quitting, and going to another service is not really an option if all your friends are on Facebook. Social media is by its nature monopolizing.
The upside is that terms of service can’t change the law. The legislation provides a framework of consumer and privacy protection that can’t be broken with an agreement. Unreasonable terms, like paying with your firstborn child, are moot.
But be aware that the law of your own country may not be applicable if the service is run from another country.
Also be aware that these terms only affect your relationship to the provider of the service. Intelligence performed by authorities is a totally different thing and may break privacy promises given by the company, especially for services located in the US.
The terms usually include a clause that grant the provider a license to do certain things with stuff the users upload. There’s a legitimate reason for this as the provider need to copy the data between servers and publish it in the agreed way. This Facebook debacle is really about the extent of these clauses.
Ok, so what about Facebook’s new terms of service? Facebook claim they want to clarify the terms and make them easier to understand, which really isn't the full story. They have all the time been pretty intrusive regarding both privacy and intellectual property rights to your content, and the latest change is just one step on that path. Most of the recent stir is about people fearing that their photos etc. will be sold or utilized commercially in some other way. This is no doubt a valid concern with the new terms. Let’s first take a look at the importance of user content for Facebook. Many services, like newspapers, rely on user-provided content to an increasing extent. But Facebook is probably the ultimate example. All the content you see in Facebook is provided either by the users or by advertisers. None by Facebook itself. And their revenue is almost 8 billion US$ without creating any content themselves. Needless to say, the rights to use our content is important for them. What Facebook is doing now is ensuring that they have a solid legal base to build current and future business models on.
But another thing of paramount importance to Facebook is the users' trust. This trust would be severely damaged if private photos start appearing in public advertisements. It would cause a significant change in peoples relationship with Facebook and decrease the volume of shared stuff, which is what Facebook lives on. This is why I am ready to believe Facebook when they promise to honor our privacy settings when utilizing user data.
Let’s debunk two myths that are spread in the disclaimer. Facebook is *not* taking away the copyright to your stuff. Copyright is like ownership. What they do, and have done previously too, is to create a license that grant them rights to do certain things with your stuff. But you still own your data. The other myth is that a statement posted by users would have some kind of legal significance. No, it doesn’t. The terms of service are designed to be approved by using the service, anyone can opt to stop using Facebook and thus not be bound by the terms anymore. But the viral statements are just one-sided declarations that are in conflict with the mutually agreed contact.
I’m not going to dig deeper into the changes as it would make this post long and boring. Instead I just link to an article with more info. But let’s share some numbers underlining why it is futile for ordinary mortals to even try to keep up with the terms. I browsed through Facebook’s set of terms just to find 10 different documents containing some kind of terms. And that’s just the stuff for ordinary users, I left out terms for advertisers, developers etc. Transferring the text from all these into MS Word gave 41 pages with a 10pt font, almost 18 000 words and about 108 000 characters. Quite a read! But the worst of all is that there’s no indication of which parts have changed. Anyone who still is surprised by the fact that users don’t read the terms?
So it’s obvious that ordinary user really can’t keep up with terms like this. The most feasible way to deal with Facebook’s terms of service is to consider these 3 strategies and pick the one that suits you best.
Keep using Facebook and don’t worry about how they make money with your data.
Keep using Facebook but be mindful about what you upload. Use other services for content that might be valuable, like good photos or very private info.
Quit Facebook. That’s really the only way to decline their terms of service.
By the way, my strategy is number 2 in the above list, as I have explained in a previous post. That’s like ignoring the terms, expecting the worst possible treatment of your data and posting selectively with that in mind. One can always put valuable stuff on some other service and post a link in Facebook.
So posting the viral disclaimer is futile, but I disagree with those who say it’s bad and it shouldn’t be done. It lacks legal significance but is an excellent way to raise awareness. Part of the problem with unbalanced terms is that nobody cares about them. A higher level of awareness will make people think before posting, put some pressure on providers to make the terms more balanced, and make the legislators more active, thus improving the legal framework that control these services. The legislation is by the way our most important defense line as it is created by a more neutral part. The legislator should, at least in theory, balance the companies’ and end users’ interests in a fair way.
Image: Screenshot from facebook.com