Facebook is Out to Get Us. Or are They?

I’ve been following the general outcry in the blogosphere and on Twitter about the revision of Facebook’s Terms of Service on February 4, 2009.

And I’d like to say this in response, “Could everyone please get a grip for five minutes? You’re giving me a headache....”

But seriously, if you haven’t been following the controversy, here’s what’s happening. Facebook updated their Terms of Service at the beginning of February and removed some language from their License section.

The Consumerist covered it in an article entitled Facebook's New Terms Of Service: "We Can Do Anything We Want With Your Content. Forever."

In pertinent part, the article mentioned that the new Facebook Terms of Service reads as follows:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

The article goes on to state that, “That language is the same as in the old TOS, but there was an important couple of lines at the end of that section that have been removed:”

The lines in question are as follows:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

This set off a hailstorm across the web. The Twitterverse (Twitter universe) went absolutely batty. People fretted about the content that they’re uploading (or have uploaded to Facebook). They even, in some cases, threatened to stop using Facebook altogether.

And they’re not altogether wrong. Your only recourse to avoid the provisions is to stop using Facebook.

Except...

Hey, I write Terms of Service for a living. You need to understand that Terms of Service are really a game of chess with your users where the penalty is not losing a player when you do it wrong, it’s a lawsuit. When I first read the articles, my first thought was that their lawyer was trying to avoid lawsuits for mistakes that might be made by Facebook by continuing to publish information from users who have terminated their accounts. I’m always trying to come up with the best way to protect my clients from lawsuits.

And I’m gratified to know that I’m about right. Today, Facebook CEO Mark Zuckerberg posted an update on the Facebook blog to let everyone know what was intended by the changes in the Terms of Service. You can find his post here. It is entitled, “On Facebook, People Own and Control Their Information.”

So, everyone stand down and take a deep breath. Please.

Are you still worried? Here’s what I would suggest...

Don’t place any information (photos, articles, blogs, etc.) on Facebook that you wouldn’t like for Facebook to have a license on. Simply place it somewhere that you have control over, and put the link on your Facebook page. That way you can share it with your friends and Facebook doesn’t have any of your copyrighted “content” to exercise their license over. It’s really the safest way to go...