Facebook’s New Content License Extends Beyond Closure of Account

The terms of service (TOS) for most websites featuring user-generated content share a common language regarding the license granted to those sites when a user uploads content. YouTube, MySpace, and Flickr, for example, all state (with some wordsmithing) that when you upload content, you grant them a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform your contributions.

In practice, this generally means that you’re granting the sites the ability to reproduce and distribute your submission in the course of making the site itself work. Mostly, this relates to granting them permission to make additional copies so they can have backups, and support multiple servers across the planet. It also grants them the ability to, literally, distribute your content — which is why you most likely posted it to the site in the first place. It also grants them the ability to feature your work in their marketing materials, etc.

Generally, this is all acceptable behavior, and is viewed as a fair bargain for using their free site. And, usually, such a license expires if you close your account and/or remove your content form the site.

But, apparently Facebook wants to keep their license even if you remove the content from the website. Consumerist reports that Facebook has changed its terms of service to remove any mention of an expiration of the license. FB’s terms of service state:

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.

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 (from the Internet Archive – emphasis added):

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.

Furthermore, the “Termination” section near the end of the TOS now has this list of items that survives any terminationof use (emphasis added):

The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.

What prompted this change? Facebook’s announcemnet doesn’t provide any specific guidance, nor does it mention this particular change.

The impact of this change will be minimal on the majority of user’s activities and experiences with the social netwoking site, but it does have major implications regarding proper and fair ownerhsip and use of user-generated content, as well as making it more difficult for users to (legally) sever all ties with Facebook if they wanted to move to a different platform.

::UPDATE: A student just came into my office and asked how Facebook can simply change the TOS without requiring his informed consent. Simple: their TOS states that

We reserve the right, at our sole discretion, to change or delete portions of these Terms at any time without further notice. Your continued use of the Facebook Service after any such changes constitutes your acceptance of the new Terms.

So, once you logged into FB on Feb 4, you accepted the new terms, regardless of whether you knew a change has been made.

This, of course, is an old problem….

::UPDATE 2:  And remember, we’ve been down this road before with MySpace, who tried to change their TOS after NewsCorp acquired them, only to change them back after similar backlash.

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