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.
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.
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
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