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in Filmmaking
on Feb 16, 2009

Just after I posted a link to Lance Weiler’s article in the current issue in which he discusses data portability and how filmmakers should not aggregate all their social networking content on third-party networks like Facebook, and a day or two before I post my interview with Tommy Pallotta on why he left the popular site comes a series of of postings online about Facebook’s new Terms of Service policy. In a post titled “I’m Done with Facebook,” Edward Champion writes, “I would advise any writers, artists, and photographers to remove their content posthaste, and not give Facebook the right to profit on your hard labor. Creative Commons and community is the solution. Not autocratic assignation of rights.”

Chris Walters at The Consumerist has the details:

Facebook’s terms of service (TOS) used to say that when you closed an account on their network, any rights they claimed to the original content you uploaded would expire. Not anymore.

Now, anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later. Want to close your account? Good for you, but Facebook still has the right to do whatever it wants with your old content. They can even sublicense it if they want.

He quotes the site’s TOS:

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.

Walters comments:

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: “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.”

Now, those sentences have been replaced by one that explicitly states that Facebook has rights to these materials after your account is deleted.

In the few days since these changes were made, many bloggers ranging from children’s book editors to camp counselors have posted their concerns. And Carolyn E. Wright, who runs the Photo Attorney blog, looked into Facebook’s TOS last month and warned photographers that uploading their work allows these photos to be used by Facebook. Fortunately, she said, “the license expires when you remove your Content from the site.” Those words were written in her post on January 9, and they are no longer true.

Paranoid or not? Any intellectual property attorneys or experts, please weigh in.

UPDATE: Taking note of the online outcry, which included statements like New Yorker music critic Sasha Frere-Jones twittering that he has deleted his Facebook account, the service has announced some clarifications to its terms of service policies that are outlined in this CNET post and in this blog posting by Facebook prez Mark Zuckerberg.

From Zuckerberg:

One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created—one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message. We think this is the right way for Facebook to work, and it is consistent with how other services like email work. One of the reasons we updated our terms was to make this more clear.

In reality, we wouldn’t share your information in a way you wouldn’t want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work. Our goal is to build great products and to communicate clearly to help people share more information in this trusted environment.

We still have work to do to communicate more clearly about these issues, and our terms are one example of this. Our philosophy that people own their information and control who they share it with has remained constant. A lot of the language in our terms is overly formal and protective of the rights we need to provide this service to you. Over time we will continue to clarify our positions and make the terms simpler.

Zuckerberg’s post and comments issued by Facebook spokesmen Barry Schnitt (“”We are not claiming and have never claimed ownership of material that users upload,” a statement from Facebook spokesman Barry Schnitt read) go some way towards clarifying the company’s intentions. Still, Zuckerberg’s statement focuses on content like Wall postings and private messages, not copywritten creative material that should be more strictly quarantined from Facebook’s automatic promotional license. As Caroline McCarthy’s CNET piece concludes:

Unlike the Yahoo-owned Flickr, Facebook does not have extensive copyright preferences, meaning that a professional photographer might want to choose a media-sharing site where there’s less of a gray area as to what can actually happen down the road.

But as Facebook becomes more and more of a content-sharing hub, especially now that the Facebook Connect product expands its reach to third-party sites, it’s likely there will be a louder cry among members–especially those involved in creative industries who use their Facebook profiles for professional promotion or publicity–for clearer terms.

The way they stand now, Facebook’s terms of service claim that the company does not have ownership over content, yet that it does have “an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (to)…use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works, and distribute” material as long as it doesn’t violate the privacy preferences set by the user.

Considering Facebook content is login-protected by default, the outcry should be quelled somewhat by that “subject only to your privacy settings” phrasing. Still, this is a debate that might not go away so quickly.

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