Terms of Service Observations

A little forum I frequent of late, has a little rant area. One about Facebook’s Terms of Service (TOS) caught my eye and I was intrigued to see they were ranting about a recent change. There’s been a flurry of internet discussion on the subject, with everyone jumping on the “Facebook is evil” bandwagon. As the ‘evil’ social network is my preference over the likes of Bebo or MySpace for its clutter free interface and general honest representation of my contacts (in that they’re not babygirl1969 or evildemon, but Joe Bloggs and Mary Sue), I decided to do a little reading around.

First of all, I must claim two things:
1. I have no legal background and you should not base any legal decision on this discussion.
2. I am fence sitting and observing. People often assume because I look from both sides I agree with the side against their opinion.

You are solely responsible for the User Content that you Post on or through the Facebook Service. 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. You represent and warrant that you have all rights and permissions to grant the foregoing licenses.

Here is the statement everyone is in a flap about. The explanation being that it is to allow FB to function with sharing and networking.

So, first of all, I decided to find out what competitors MySpace and Bebo do for their users. Interesting findings.

By displaying or publishing (“posting”) any Content on or through the MySpace Services, you hereby grant to MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the MySpace Services, including without limitation distributing part or all of the MySpace Website in any media formats and through any media channels, except Content marked “private” will not be distributed outside the MySpace Website.

and Bebo:

Bebo does not claim any ownership rights in any Materials that you submit, post, or display on or through the Bebo Service. After submitting, posting or displaying Materials on or through Bebo or the Bebo Service, you continue to retain all ownership rights in such Materials, and you continue to have the right to use your Materials in any way you choose. By submitting, posting or displaying any Materials on or through the Bebo Service, you hereby grant to Bebo and its agents and assigns a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Materials solely in connection with the Bebo Service or the promotion thereof.

Neither claim such aggressive rights, though Bebo does go on to explain their reasons in the same way as Facebook has recently defended itself.

I looked to Photobucket:

Photobucket does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Photobucket Services. By displaying or publishing (“posting”) any Content on or through the Photobucket Services, you hereby grant to Photobucket and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked “private” will not be distributed outside the Photobucket Services. Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content).

Since Photobucket is almost entirely about sharing and storing media created, they’d have it on the mind. Especially as most of the people worried about FB have posted creations whether fiction, poetry or graphic art.

There is a reoccuring theme about the marked as “private” reference, which is rarely clarified. FB has complex security settings. Surely private would refer to something that couldn’t be shared with anyone – which most people wouldn’t even bother to post with FB where the essence is to share. Photobucket is different, I may post items that I do not wish to share necessarily.

So is FB just taking a more agressive stance? But are they the first? No, they’re not. Google’s been there first, and actually they were pre-empted by a decade it seems. Here’s Picasa…

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this licence includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above licence.

Aha, so they’re indeed not the first and it appears not the last too. But there are a couple of interesting comments from previous outbursts about similar changes:

Royalty-free, perpetual, irrevocable, non-exclusive, transferable licenses references back ten years to when Yahoo took over Geocities and this happened.