By Casey Lynn
Contributing Writer, [GAS]

You’ve probably heard about the recent Facebook TOS debacle and subsequent backpeddling. After a few quiet changes to the terms, a bunch of users of the social networking site revolted, followed by preparation to file a formal complaint by the Electronic Privacy Information Center to the FTC. So Facebook has backed down, reinstating the previous version of the terms (last modified in September). However, this doesn’t mean that all is well. On the contrary, Facebook’s terms have always been a little scary when it comes to your content.  Here is what Facebook’s TOS still says:

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. 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. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content. (emphasis added)

Of course, I should note that despite the title of this post, the terms do make it clear that Facebook never owns your copyright–but in the copyright world, having a non-exclusive license with all of those rights attached to it isn’t much different. The problem with these terms is that it looks like the first sentence nullifies the overarching character of the rest, and that the second-to-last sentence gives you a clear way out, but that actually isn’t so clear. I mean, it’s bad enough that most people don’t even read terms of service or end-user license agreements, but most of the time the important stuff is shoved into confusing legalese anyway. I won’t bore everyone with the possible interpretations of the paragraph above, but if you’re interested, I would recommend taking a look at this article from the Santa Clara Computer & High Technology Law Journal. One kind of alarming theory is that the first sale doctrine (i.e., what lets you sell a copy of a book once you’ve bought it) might allow Facebook to sell your content even after you’ve left the site–because since they don’t have the authority to use the content anymore at that point, they can’t make copies of it and thus only have the one. Granted, this is kind of a stretch, but it’s a possible interpretation.  And of course, until you actually delete everything on your account, they can use your content pretty much any way they want as long as it’s in “connection with the site,” which is pretty broad–including making derivative works.

The moral of this story is, of course, always pay attention to the TOS if you’re posting anything that might potentially be of value anywhere. Like, I don’t know, if you’re a teenager now and in thirty years you’re running for president.  Even though you haven’t had a Facebook account for twenty years, they’ve still got a copy of that picture of you doing a keg stand in your underwear… and I’m not totally sure that these terms keep them from being able to sell it to the Washington Post.

[Image Source: Flickr]