The Facebook Terms of Service And Why It Doesn’t Mean Much

One of the reasons I love the web is because it repeats the same story lines, over and over again. For example, here’s a story that came out, and I’m removing references to the social network in question for your own humor:

Today, [insert your favorite social media network here] changed the terms of service, much to the protests of the users who use the service for free. The revision grants [insert your favorite social media network here] complete, perpetual ownership of content uploaded or added to [insert your favorite social media network here] – including the rights to sublicense said content.

[insert your favorite social media network here] Terms of Use previously stated that material uploaded onto the site falls under the license of the company. Prior to the update, however, users that removed their content from [insert your favorite social media network here] legally forfeited its license to their material, though the socnet reserved the right to maintain archives.

The users invaded the blogosphere, stating their disagreement to the new policy.

[insert mad blogger here who uses said social network] said, “Yo, this sucks. I’m not paying for the service, but they shouldn’t be able to do that with my content stored on their servers. I’m going to cancel my account and blog about it. They suck.”

Blah blah blah, blah blah, blah.

Back to the real world, folks.

A lot of this terms of service is realistically about as enforceable as a non-compete agreement in California (and for those of you that don’t know, non-competes in California are so limited, you’re better off setting it on fire than trying to enforce it). Lawyers are supposed to overreach, it’s in their blood. That’s how they compromise. Until this document is challenged, it doesn’t mean much, anyways.

I would have loved to be in the office of those lawyers:

“Hey, I think we missed a few things in that terms of service,” said Facebook lawyer one. “Should we add a couple of lines?”

“How about we own them forever? What do you think? How much will page views go up?” Said Facebook lawyer two.

It’s kind of like driving down the highway: there are tons of laws that could be invoked if you are even doing the speed limit, but common sense says the cops can’t pull over everyone, and even if they do pull you over, there’s a good chance the case will get thrown out of court because most courts operate on some level of common sense.

Lawyers do all kinds of things that bend the law as far as it will before it breaks, from working at a company to constructing terms of service. Their job is to always protect their client. Facebook’s lawyers are protecting theirs.

I’ve been doing this for too long to realize what they are doing, and I’m like a lot of other bloggers (Greg Bussmann, Wet Asphalt, Art Fag City, TechCrunch): not really that worried. This seems more to be a few blogs looking to get some traffic (and I’ll take all the traffic I can get).

In fact, I see this as more of an attempt for Consumerist to justify it’s Alexa Ranking than real news. How about looking into the data collection issues of retailers in the United States, yo.

Here’s a few truths about social networks and their terms of service:

Facebook would be crazy to license the materials

Hypothetical: let’s say Andy Warhol rises from the dead and posts one of his famous Campbell Soup prints to Facebook. Do you really think they would sell the print on eBay? Hell, no. That part is virtually unenforceable from both a legal and a realistic standpoint. There’s a story over at the New York Times where the artist that designed the Obama artwork is getting sued by Associated Press. No matter what companies think, there are laws protecting people’s copyrights.

Companies put all kinds of crazy statements in the terms of service — stuff up unto giving up rights to your first born — but it doesn’t mean it’s some kind of legal document that’s going to stand up in court. If there’s a lawsuit, judges and juries tend to side with the law or common sense, which ever comes first. What it really means is that all aggregate data Facebook puts together they can sell as market research, but they aren’t going to sell your photos.

Your supermarket and credit card companies probably collect more information on you when you use your card than Facebook can. And the reality is that Facebook and MySpace collect so much information, there’s physically no way to digest it all at the level that it would endanger your privacy (I’ve even been told as much by some of the network engineers that work at the companies).

And for public relations purposes, Facebook would go out of it’s way to contact and/or compensate you, to avoid backlash. Even if they did use your likeness in an advertisements, they would probably contact you first. There’s case law around this. Please, be informed.

Removing content damages the landscape of any social network

I used to run a message board ages ago (ages being early 2000, but consider internet dog years and the grey hair in my goatee), and the most difficult issue was dealing with users we had to ban (and we had to ban a few of them). They would stand upon their soapbox and say nasty stuff, and then I would get a phone call at 3 a.m. along the lines of, “This person said this, you have to take it off the board. Waaa!!!!”

No matter where you are at, stuff you put on the web is up there forever, as Chris Brogan points out.

Social networks are a functioning ecosystem akin to weather’s butterfly effect: what happens in one place on the system and it’s resulting effects tends to magnify across the entire network. There were particular people that, looking back, I wish we hadn’t banned. even if they were horrible people and killed cats, because the outrage wasn’t worth the trouble. The reality is that sometimes responding to the issue is worse than the issue itself. Seriously, in a message board, how do you delete replies to a nasty post? Some of those threads went on for over 100 replies.

What Facebook is really trying to do is this: let’s say they put part of the service behind a subscription wall. With this new agreement, they can charge subscriptions and not have to worry about paying customers for their content. Imagine if customers decided, “Yo, I don’t want my content anymore?” What an awful mess that would be, programatically. And again, one of the undecided issues of the digital era is, who does own that content?

You aren’t paying for the service, Facebook, or better yet, their advertisers are

Rule number one about online services: they aren’t charities. They’re there to make money, and if you forget that nothing is really for free, it’s all about the library, the candlestick, and the butler. Get a clue.

On a few of the social networks I’m on, when something happens that the users don’t like, the users stand upon the mountains with their ten commandments, shouting at how awful the service is, even though they aren’t footing the bill. “The moderators are Hilteresque,” they rant. “Something should be done,” they howl.

I’ve footed the bill for some awful users that bordered on needing psychiatric treatment. I’m going to challenge every single blogger to do this: if you don’t like it, start your own damn service.

Whomever the founders are, whether it be the MySpace gang or Mark Zuckerberg, or your mom, they’re the one’s that put in their own sweat to start something that has millions of users. Sometimes, they have to make unpopular decisions, knowing some blogger somewhere (like me, for example) is going to say something about it. If they make too many unpopular decisions, they lose customers (read, Friendster). But they are running a business, and sometimes forcing a new set of requirements, whether it be new user experience or a reworded terms of service.

Millions of people might gripe a bit, but move on with their lives.

Some people start groups. Others blog about it. Very few actually do anything about it of any note.

It’s good business to lose a particular set of customers

The realities of business is that some policies (like bandwidth throttling by Comcast, for example) may not be popular with a particular set of users, but a) those users are not only a pain in the ass but are also unprofitable, and b) those users compromise less than one percent of the user base, yet probably eat up about 10 to 20 percent of the resources.

The same is true of marketers that use MySpace and Facebook, considering that most of the people that make money off the services aren’t employed by the services: they eat a considerable amount of resources, and of course Facebook would want to limit them.

Businesses do this all the time: they make changes to their business model or the groups they employ so they feel they can be more profitable. This includes from changing of policies to laying off workers. It doesn’t mean it’s right, but it’s just part of business.