Why Facebook users must still be cautious

It all started with an article in The Consumerist, which noted that a change to Facebook's Terms of Service had been instituted, seemingly on the sly*, that extended the company's access to your content essentially forever.

Here at Neowin we made an effort to take apart the new Facebook TOS to see just how onerous they were.

Facebook bounced back, pumping out spin to media outlets big and small, about how they were retreating from the "forever" addition to their TOS. They retreated to their previous TOS which, following their spin campaign, was supposed to make everything in the world all right again. Clarifications about how you remain the owner of your content--clarifications that do not appear in older versions of the TOS archived online at web.archive.org--surfaced (re-surfaced?).

Fearing that masses of Facebook users would be jumping ship, as we reported here as well, they are now seeking to open the matter up to take in the views of their members.

On 21 February, Techcrunch passed on, without critical comment, the views of Chris Kelly, Facebook's Chief Privacy Officer. The gist of their uncritical account was that the whole thing was "a scandal that was essentially cooked up by Consumerist". Rightly enough, they received dozens of indignant responses from people who had chosen to take the word of Facebook's TOS over that of its privacy PR man. One response, typical of many, used the metaphor of a used-car salesman: whatever he may say, it is never a good idea to sign any contract until you have actually read it!

But this incident has drawn more attention to the supposedly unproblematic TOS Facebook had been using prior to this incident and has resorted to using now. Although it is unlikely the company could provide the service users expect without such terms, it is important for users to recognise that uploading content to Facebook can still have undesired consequences. If, for instance, you upload a novel you have written or a photo you have taken and grant others ("Friends") access to it, then you have used the Facebook service to disseminate your work in a way that ceases to be under your control. It is not as extreme as, for instance, making it into a freely available torrent, but you cannot control its distribution within (and beyond) the Facebook web space. In this sense, it is well to be cautious about using Facebook or any other similar web service to share your creative works.

*Technically, the change they made was not on the sly: part of their TOS states that it is effectively up to you to keep visiting their TOS webpage to find out if anything has changed--this is serious. How many people are going to do that? And how often should they do it? Whenever they add something to their Facebook account? Every day? Every ten minutes? Clearly this is an issue that, in the interest of transparency, should also be addressed. If, after all, it is easy enough for them to send out a mass message to Facebook users asking for their feedback on the current TOS problems, it should be equally easy for the company to notify account-holders of changes to the TOS. Further, users should ideally be allowed to indicate whether they wish to continue using Facebook under the new terms by being offered a chance to accept or reject them.

Edit: This article is not anti-Facebook. If this author has anything against anyone, it is against those who treat the contracts into which they enter without due vigilance--and this author readily admits to having too often in the past been guilty of this as well. We are all responsible for our actions. There are problems with Facebook's relations with its users, and these are problems Facebook has acknowledged time and again. Indeed, the company's move to call for comments from the public about their TOS is both responsible and commendable, in this author's view.

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Oh please, this article seems, more or less, like a vendetta against Facebook. Facebook did, actually, make it public that their TOS were updated. See the following post:

http://blog.facebook.com/blog.php?post=50531412130

They post all sorts of information on their blog. Your uninformed statement that "Facebook's Terms of Service had been instituted, seemingly on the sly" removed all of your credibility, as you apparently either haven't used Facebook, or you're simply a user with some hard feelings of the service (or you're that minority who is attention craved and just goes trolling, but I don't think that's the case).

Now that this is out of the way, any service you post to ANYWHERE online has complete access to the things you post to it. I have employees I work with (and even the boss himself) as "friends" (as you quote) on Facebook. I can either give them limited access to my profile (which I do not) or just not post things that I would rather the world not see. I'm a transparent person though, so I couldn't care less if everything that I post could be seen -- either now or 10 years from now. Anyway, there's no such thing as a secret.

Their updated terms were only noted after the public outcry. Their TOS states they don't have to tell you when they update: it's up to you to check. See the asterisk at the end above (or the TOS).

what average user reads the facebook blog.... yeah, thought so, that said... the solution to this whole problem? things you want private, keep private and don't give your information away to third parties, no matter how convenient it may or may not make things

I read the Facebook blog, or at least check to see what's going on on a semi-constant basis. Since James apparently DID NOT read the blog post I linked to, let me quote it for you:

We want to let you know that today we're updating our Terms of Use—the rules you and Facebook agree to when you sign up to use the site. We used to have several different documents that outlined what people could and could not do on Facebook, but now we're consolidating all this information to one central place. We've also simplified and clarified a lot of information that applies to you, including some things you shouldn't do when using the site.

Notice the word "today". They posted the blog update on the day of the change, not "after the public outcry".

As for the "their TOS states they don't have to tell you when they update", maybe you should read Neowin's "Privacy Policy" (http://www.neowin.net/news/privacy/) which states, "changes to this document may be made any time without warning. neowin.net may or may not notify you of changes in this policy, however, we will make an effort to notify you if there are any major changes to this policy." This is typical for almost every TOS on the internet. Acting like it's some "new" thing is crazy. Moreover, Facebook modified AND let their users know on their blog. This is just like Neowin changing their Privacy Policy and sticking it on the Neowin forum that not everyone reads.

I did read the clarification in Zuckerberg's blog. It seemed mostly to be the sort of spin the company has been putting out since the outcry. The TOS have not changed in terms of your needing to keep checking it to see if what you'd originally agreed to has changed or not, since they still say they put the burden on you to research the matter. If they are after transparency, then they should inform users directly when they make changes and give users ample time to adjust: to cancel or continue. If I sign a contract, it is only reasonable that any changes to that contract be presented to me for consideration prior to their coming into effect. The current situation is absurd. Why should I have to check the TOS or a blog to see what new terms I have automatically agreed to without any forewarning?

How long did it take for the public outcry to emerge after they made that earlier change to the TOS? Was it a week before someone who actually reads such things noticed? Was it two weeks? This shows two things: a lack of transparency on Facebook's part and a dangerous lack of interest in most Facebook users' parts as to what their rights are vis-a-vis Facebook. Pointing out these problems is a good thing.

artfuldodga said,
you also read neowin, you both aren't your typical care free user

I do not understand your comment, artfuldodga. Please may you explain what you mean? Thank you.

Most criticisms of the controversial TOS were due to content issues. That is what I focus on here. Just to clarify what people should know. It is not anti-FB.

The original terms of service are horrible, but nobody made a big deal of it for any number of reasons. Maybe they didn't realize it, or maybe they didn't realize the full extent of it. I had no idea, myself, until this whole thing started up. That's when I started reading about how as bad as this was, the original TOS wasn't much better.

And it isn't. The terms of service state the following (emphasis is mine):

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 license (with the right to sublicense) 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 . . . .

I do photography as a hobby and occasionally earn a sale on a picture or enter them in contests. For a while I had an album so that friends could see some of my works. Yet it according to Facebook's TOS, they would be entitled to take any of my photos and essentially sell it themselves. Worse, since I am the one granting them a license and their TOS states that I'm responsible for making sure that I have the rights to grant that license, this becomes dangerous for me.

Here's why it's dangerous. Suppose I take a picture of some copyrighted work or structure, or even something where a person is included, clearly visible/identifiable, and I didn't get them to sign a model release. Those types of phoography are perfectly fine and legal - until you use it for commercial purposes. Facebook goes around using that picture for commercial purposes behind my back, and without my permission (although under their TOS, by uploading I gave them permission). Now Facebook gets sued. They can pass the lawsuit on to me, because of their TOS. Assuming the courts treat the TOS seriously, there's nothing I can do about it and I am screwed.

Would Facebook really risk things like that happening to their users? Probably not. Obviously if word got around that you could be sued for uploading to Facebook people would stop sharing, which would cut back on the site's attractiveness. However, guessing about their intent is a foolish thing to do. The truth is that it's in their terms of service that they could do it if they wanted to. The now-retracted TOS had wording that made it seem as though there were a transfer of ownership when you uploaded content; the current TOS makes it clear that there's no transfer of ownership, but Facebook is basically saying that it can do what ever it likes with your works, and you consented for it to do so the moment you uploaded it.

Note also that this is very different from what Google does with your data. Personally I don't like the idea of that, so I've cleared my pictures and won't be uploading them to Facebook anymore. I'd imagine that many other photographers or story writers would think twice about uploading their content to Facebook if they were aware of the terms of service, too.

I have to admit that the language you highlight in Facebook's current TOS is disturbing to me. One hopes they will revise it along better lines when they finish their review of public opinions. And I think you are also right to point out Google's TOS which, as far as I can tell, are far more reasonable than Facebook's. And far clearer: http://www.google.com/accounts/TOS

Ledgem, I am not a lawyer, but maybe this guy can help: http://webtechlaw.com/what-facebooks-revis...an-your-content

Be sure to listen to his audio there, where he talks you through the various bits. It's an education. It is a bit scary....

Here's a couple of things Facebook could easily do to prevent public outcry:

  1. Inform users about major changes to the Terms of Use and offer an option to accept or reject it.
  2. Incorporate a pop-up disclaimer whenever you post a photo, video, or note to your Facebook account.

Does anyone actually post anything worthwhile on Facebook?
Facebook can own the rights to all the crap I send to my friends for all I care.

Also: Facebook is quite alright when you actually have friends (on there) ;D

I have no problem with facebooks TOS. I figure if I post anything online, anywhere, it's free game for anyone to grab.
Don't put anything out there you don't want others to have.

Facebook doesn't prompt the users to read and accept/deny the ToS upon login when it's updated? MS has done this when they released Zune 3.0. I'm sure Facebook can as well.

Whenever Facebook wants to seem like they care, they "open it up to the users". Yeah, like that's really going to change anything.

You know what else they opened up to the users? Feedback on the current ugly profile pages. Nobody liked those, yet they didn't change anything with that.

Heh, there was a huge outcry against the "new Facebook" which was a friendly name for "massive heap of incompetent garbage"... but all they said was "too bad, if you don't like it then leave"

Yet when they try to take permanent ownership over your content they will post a message begging you not to delete your account. Interesting.

No one should be posting anything that they don't want seen public on Facebook in the first place. If they do, there's no one to blame but themselves.

This article was hard to follow with its word usage. That being said, if you put stuff on the internet, don't expect it to be yours anymore.

I see no problem with James' vocabulary on this article, however, if you have an issue/suggestion with any article, or if you just find an error, we really would appreciate it if you can use the "Report a Problem" feature. If you would like help on how to use this feature or more information about what it is, please send me a private message and I will inform you.

Thank you. We really do appreciate suggestions; if done in the right way

I think deviantART has something like this too. Its really a brilliant model actually. While the vast majority of content will have no real commercial potential, some obviously will. Its like a huge, world wide dragnet for fee media content. Genius. But total bull**** too!

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