Intellectual Property Law

Broad TOS and Broad Anxiety

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Two epilogues to this week’s media boomlet about the Facebook terms of service. (To review: Facebook quietly changed its terms to remove a provision that used to say all Facebook?s rights to your content terminated if you deleted your account. The Consumerist Blog pointed it out under the headline “Facebook’s New Terms Of Service: ‘We Can Do Anything We Want With Your Content. Forever.’” A blogstorm, and then media storm, ensued. In response, Facebook changed back to the old terms and solicited feedback about how they should re-re-write them.)

First, Jonathan Zittrain has a nice post looking at longer-term implications of this particular storm, now that it has passed. Like me, JZ seems to agree that the significance of the actual change to the TOS here was relatively minor, and he argues that such storms are “good times to think about these matters ? too often people are too busy shoveling out their data to really think through the implications of what they?re doing.” Well said. He also points out that, as he discusses in his recent book, “peer-to-peer privacy” may be a more significant peril on Web 2.0 than the traditional conceptualization of privacy as Big Data Collector vs. Individual Data Subject.

Second, you can approve or disapprove of assertion of rights like Facebook’s, but you can’t deny their ubiquity. Another privacy-conscious friend has powerfully demonstrated just how ordinary the extremely broad Facebook terms or service are by posing this simple question: guess the derivation of the following terms of service paragraph.

Except as otherwise set forth in this User Agreement, by transmitting any public Communication to the Site, you grant [Site X] an irrevocable, non-exclusive, worldwide, perpetual, unrestricted, royalty-free license (with the right to sublicense) to use, reproduce, distribute, publicly display, publicly perform, modify, edit, create derivative works from, incorporate into one or more compilations and reproduce and distribute such compilations, and otherwise exploit such Communications, in all media now known or later developed. You warrant that you have the right to grant these rights to [Site X] and that you will not post any content that infringes or violates any proprietary, privacy or publicity, or other rights of any party or that violates any law. You hereby waive all rights generally known as “moral rights” in your Communications to the extent they can be waived, under any existing or future law of any jurisdiction.

(Click this link for the answer; those terms apply to this high-traffic site.)

Full post as published by Info/Law on February 19, 2009 (boomark / email).