Lessons Learned from Facebook’s Terms of Service

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By Gabriel M. Helmer and Aaron Wright

When Facebook changed its official terms of service earlier this month, what ensued was an explosive public outcry over who owns what users post to social networking sites. Tens of thousands of Facebook’s 175+ million users suddenly clicked that often-overlooked link at the bottom of the webpage and poured over the arcane and legalistic language comprising Facebook’s terms of service. For many, this was no doubt the first time they had ever read the policy. Below, we recap the recent controversy and discuss the three lessons Facebook and the rest of us should have learned from this series of events.

Recap: Facebook Revises Terms of Service, Ignites Massive Public Firestorm

On February 4, 2009 Facebook announced on its official blog that it had updated its terms of service and provided its customers with a link to those new terms of service. The revisions went little remarked upon until February 15th when The Consumerist, Consumer Reports‘ official blog, posted a story entitled “Facebook’s New Terms Of Service: ‘We Can Do Anything We Want With Your Content. Forever.’” The post focused on a revised clause that provided Facebook with irrevocable rights to use its users’ likenesses and content:

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.

This most severe change from the original terms was that the revised clause excised a sentence that terminated Facebook’s license to user content:

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.

After the Consumerist broke the news, the post received over 300,000 hits in a single day (according to the New York Times) and after the post ignited a firestorm of criticism, blog posts and articles, one Facebook user created the user group “People Against the New Terms of Service (TOS)”.  Two days later, the Consumerist reported that more than 750 articles had been written on the subject and the People Against the New Terms of Service group had 64,000 members.  As of this posting, the group is over 141,000 members and growing.  This may make Facebook’s recent revision the most controversial event that has ever occurred in the history of website usage policies.

Facebook responded to the criticism within days.  First, on February 16, 2009, Facebook attempted to explain that they did not believe the new terms of service did what critics said they did.  Then, Facebook withdrew the revised terms of service two days later, on February 18, 2009, and created a user group to open up discussion on a Facebook Bill of Rights and Responsibilities. Facebook appears to be attempting to harness this controversy to power continued user debate and involvement in the site.

Below we discuss three key lessons to learn from the controversy over Facebook’s terms of service.

Lesson 1: My Information Is Mine, No Matter What I Do With It.

What will make millions of Facebook users suddenly stop ignoring the link that has always been at the bottom of their Facebook profile and actually read the terms of service? The answer is: a rumor that their vacation photos, wall-to-wall conversations with friends and movie compatibility test results are no longer theirs to control.  Much of the criticism comes from a simple objection to Facebook asserting ownership of its users’ creative works and personal photographs, no matter how widely they are distributed. Like it or not, the clear concern voiced by tens, if not hundreds of thousands of Facebook users is that their photos and content belongs to them, not Facebook.  Anyone that permits users to create or post their own on-line content should be paying careful attention here. Social networking permits users to generate public content, but there is an emerging view, if not a consensus, that a user is entitled to a certain degree of control over the content that she or he generates. 

Lesson 2:  No One Likes Legal Terminology, Especially the Terms Apply To Me

Perhaps the greatest irony of the Facebook controversy is that it demonstrates that few users have ever read the terms of service before. There has been loud criticism of Facebook for asserting an “irrevocable, perpetual . . . worldwide license” of user content (see user comments here), even though this language was taken word for word from the original terms of service. As lawyers, some of us have become used to this kind of legal boilerplate, but when the news of Facebook’s revision hit, users turned in record numbers to the terms of service and discovered, for the first time, an uncomfortable twinge at the thought that anyone, let alone Facebook, had something “perpetual” or “irrevocable” to do with the pictures from their last family reunion or Friday night’s cocktail party. Even lawyers have become concerned, judging from the number of lawyers from a wide variety of practices that we recognize among the members of the People Against the New Terms of Service user group.

It may be necessary for Facebook to obtain certain legal rights to user content because it has to store, manage and archive this information.  But, the Facebook firestorm teaches us that policymakers and lawyers may sometimes need to spare the overbroad legal boilerplate and reassess what rights are really necessary to operate.

Lesson 3:  Let’s Discuss, Not Dictate

Finally, the introduction of the new terms of service was seen by some as having been done in an inappropriate manner. Some claimed that Facebook did not inform users of the change to the terms (see here), while others argued that the notification provided to users of the new terms of service was too subtle. In response to this criticism, Facebook has been quick to open lines of communication. It created a user group to discuss changes they believe they must make to the terms of service and allowing users to comment on proposed policy before it is implemented. While there has been talk that the solution is greater transparency so that users know what policies you are considering, it seems the greater lesson to be learned here is to know your users.

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