Weighing in on Facebook's Terms of Service

Since yesterday’s firestorm of opposition to the recent changes in FaceBook’s terms of service (TOS) agreement, the social networking website has recognized its error. They’ve rolled back the problematic legal agreement that very clearly claimed perpetual ownership of content produced by Facebook users, even if they deleted their accounts. They are now rewriting the TOS. We’ll be very interested in what they come up with.

Much of the commentary from Facebook supporters focused on the myth of online privacy. Many of us who were unhappy with the change of terms were not worried about privacy, we are content producers who zealously protect our copyright and the copyrights of our clients, and the changes were problematic for that reason. And the problem with Facebook founder Mark Zuckerberg’s “clarification” of what they meant to do is, it’s not a legal agreement, it’s his interpretation. But what he said they meant to do is NOT what the TOS change said. The change said they had a license to use everything you posted any way they wanted.

This is NOT about privacy concerns. I gave those up long ago when I embraced online life.

We understand that if you post something online it is pretty much there forever — I wrote an email post in a USENET Group in 1992 that still seems to be the earliest online use of the phrase “e-business.” It’s there for anyone who wants to Google it. Forever.

This is about who owns what I create — and what you create. Just because it’s “only a photo of Aunt Tillie” doesn’t mean you should give up your rights to that photo. You made it, you own it.

Like many independent consultants, I make my living from the content I create for myself and for clients. That means podcasts, video podcasts, photos, writing articles, anything else I can sell as part of my services. It’s valuable to me and my company’s brand to share a lot of this content online, on sites like Flickr, Twitter, and Facebook.

I am willing to have my content promoted, distributed, highlighted, shared on these sites. I am not willing to allow these sites to say they own my content and can sell it without sharing those proceeds with me in a reasonable way.

When George Lucas was asked about YouTube (whose users seem oblivious to its similarly confiscatory TOS claiming ownership of every video you post there), Lucas responded “I’m always amazed at how many people are willing to work for nothing.”

That’s what you do when you post content to sites that claim ownership. You work for nothing. They grow and gain in advertising value with the content you create. Advertisers want eyeballs, and sites get eyeballs by having content people want. They should share that revenue with the content creators in a meaningful way. Not “if we get 10 million hits on your content we’ll give you $20.”

Here’s the content of a note I posted to Mark Zuckerberg at FaceBook this morning:

Mark, thanks for having second thoughts about listening to the lawyers on the TOS. The clause they wrote was a clear rights grab from the perspective of those of us who create content intending to profit from it, like podcasts I produce for clients, videos I produce for profit, and my writing. That’s how I make my living. I don’t give anyone perpetual rights to anything without compensation, and despite your “clarifications” of what you intended that isn’t what your legal terms stated.

The problem is that we live in a world where it’s not your intentions that govern the relationship, it’s the legalese. People can try to diminish the importance of the TOS any way they want, but that is the governing agreement. If you don’t intend to own our personally generated (and copyrighted) content forever, then you have to say so in the TOS, not let the lawyers write a perpetual license that gives you effective control over that work product.

I suggest you get input from intellectual property experts outside your law department — especially from professional writer groups, professional photography and video trade associations, and other trade groups interested in protecting the copyrights of their members. There ought to be a reasonable middle ground in which content producers can be comfortable that posting a link to their work product on FaceBook doesn’t strip them of their rights to profit from their work.

Just because millions of people give up the rights to their videos by posting them on YouTube doesn’t mean all of us want to work totally for free. We display our work to you and our friends because it’s part of the overall online strategy for our personal brands, and so people know what we are working on. But things change. As the commercial says, “Life comes at you fast,” and we need to know that if we change our minds and part ways with FaceBook, we really part ways.

Looking forward to continuing the dialogue!

Steve “PodcastSteve” Lubetkin

As a free society, we’ve always placed value on the creative energy of content producers — whether they are superstar blockbuster authors or just ink-stained struggling wretches who celebrate the $25 stringer fee they earned from filing a story with a wire service.

Do we really care so little about the rights of content creators that we want them to shut up because being able to Poke and SuperPoke people is a higher priority?

What do you think?

1 Comment

  1. first of all, just read your comment on the Forbes article on Brian Tierney’s compensation bump, as his papers slump, on the money.As far as rights to online content, how does one establish them? As the former owner and publisher, and reporter and photographer of an onlne local news site, I got hit in the face with that on a regular basis.Found it hard to deal with sitting through municipal meetingd for three hours only to have my stories show up in local dailies, with the graphs slightly rearranged. Talk about working for free….it’s a tricky beast.

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