Facebook’s latest attempt at “friendliness”

Facebook just released a statement concerning future changes to their Terms of Use:

Beginning today, we are giving you a greater opportunity to voice your opinion over how Facebook is governed. We’re starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we’ll consider—or the reason we won’t consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We’ve created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you’ll also have the ability to vote for or against proposed changes.

I suppose it’s nice to see that Facebook is trying to take the worries of its users to heart.  If you pay attention to the fine print, though, they are — unsurprisingly — not promising to really do anything.  More analysis after the jump.

I briefly checked out the group formed to discuss the Statement of Rights and Responsibilities.  So far, here’s what they’re saying:

1. “Forever won’t work: Facebook’s use of our content has to have clear limits.”

We sought to address this comment in a number of ways. First, we make it clear that users own all of their content. Second, we removed the terms “perpetual” and “irrevocable” from the license grant we receive from our users. Third, we make it clear that this license ends when you delete your content or your account. And finally, we make it clear that we can only use your content in a manner consistent with your privacy and application settings.

First, the fact that users “own” their content is irrelevant.  In the previous version of the Terms of Use, as well as in the proposed version, Facebook retains the right to use your content in any way, including creating derivative works and sublicensing your content.

Here’s a basic example of why this means you probably don’t “own” as much of your content as you think you do.  Say you post a picture of yourself in front of the Grand Canyon to Facebook, and you make it publicly available.  That act gives Facebook the right to do all sorts of things with that picture, as described in the Statement of Rights and Responsibilities:

  • Create copies to display on other users’ news feeds (well, obviously, that’s what Facebook is all about)
  • Print up your picture and hang it on the wall of their office, because they think it’s pretty (the printed picture is likely a derivative work, and they get the right to create that in the license)
  • Print up your picture on fancy paper, and create a web site to sell prints of it (huh?  really?  well, again, it’s a derivative work, and there’s nothing in the license that limits what they can do with said derivative works, so they can probably take your photo itself, print it, and sell it to other people)
  • Sell their rights in the picture to Random House for inclusion in a travel book about the Grand Canyon.  Random House likes your picture so much that they use it for the cover photo.  The book becomes a best seller.  Your picture is now on newsstands across America.  Random House pays Facebook royalties for every copy sold, and Facebook becomes even richer off of your picture.  Facebook doesn’t pay you anything.  (holy crap, really?  Without paying you?? Well, it’s a derivative work, and it’s within Facebook’s license to create it, and Facebook can sublicense the rights to the photo to whoever they want, so this is probably allowed too)

In contrast, if you posted the photo on your own web site, you would get the default protection of copyright law, and nobody would be allowed to do any of these things without coming to you first.

Yes, perhaps the new language actually makes the sublicensable rights go away if you delete your content.  But until you delete your content, Facebook is free to make as much money off of it by selling it to other people as they can, and they never have to pay you a cent.  A lot of people would find this to be inconsistent with the idea that you still “own” your picture.

2. “Opt-in only: Facebook can’t just change the terms whenever they want.”

We sought to address this comment by adopting a virtual Town Hall process for providing users with notice of proposed changes and an opportunity to comment, as well as an opportunity to vote where certain thresholds are met.

Again, “opportunity to comment” is meaningless unless they are obliged to make changes pursuant to those comments.  The voting thing sounds nice, but let’s look at the actual portion of the document where they talk about voting:

12. Amendments

12.1 We can change this Statement so long as we provide you notice through Facebook (unless you opt-out of such notice) and an opportunity to comment.
12.2 For changes to sections 7, 8, 9, and 11 (sections relating to payments, application developers, website operators, and advertisers), we will give you a minimum of three days notice. For all other changes we will give you a minimum of seven days notice.
12.3 If more than 7,000 users comment on the proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote.
12.4 We can make changes for legal or administrative reasons upon notice without opportunity to comment.

OK, so:

  • They will notify you of changes, unless you opt out of receiving such notification.
  • If they get enough comments, they’ll provide options for a vote.  For the vote to be listened to, they need 30% of active registered users to vote.  According to CNet, there are 175 million active Facebook users.  So, they’ll listen to your vote only if more than 50 million people participate within a seven-day window.  You are deluding yourself if you think that could possibly happen.
  • If there’s a legal or administrative reason to change the terms, they don’t have to do any of this.  Would there be a reason to change the terms that isn’t legal or administrative?

So, the lip service given to user input is nice, but it’s nothing but lip service.  Besides, as anyone familiar with administrative law could tell you, a period of public comment doesn’t necessarily mean that the final rule adopted will be substantively changed to address any of those comments.

3. “Write it in English: No legalese (or Latin!) please.”

We sought to address this comment by making the proposed Statement simpler and shorter, and avoiding legal terms where possible. That said, some legal concepts demand the use of very specific legal wording, so it is not possible to avoid all legal language. We look forward to your views regarding whether we accomplished our goal to make the Statement clear.

So, we’ll use plain English, unless it doesn’t make sense in plain English, in which case we’ll do what we want.

All of this is a quality PR move, to be sure, as they’ll probably get a couple of news cycles dedicated to how great it is that they’re allowing users to vote on how the site is run.  However, it is unlikely that these new agreements will impose any meaningful changes to the rights or responsibilities of the company.


2 Responses

  1. […] self-governance may be unworkable Posted on March 18, 2009 by FinePrintReader I previously discussed the fact that Facebook was kicking around the idea of reworking its terms of use, and to solicit […]

  2. […] clients on their far away servers and protected from your prying eyes by byzantine EULAs (ex. 1, 2, 3) swarms of attorneys and spanking-new patents, hot off the printing press. Wait, I guess I […]

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