Some people attribute it to Twitter. Others point to blogs and email campaigns. Regardless, the speed with which Facebook responded to a ferocious backlash over changes it made to its Terms of Service agreement was remarkable. Not only for the speed of its crisis management in the wake of the outcry and proposed boycotts, but for what likely marks a significant turning point in the way content, copyright and ownership are perceived in general.
The facts are simple. About three weeks ago, Facebook made a modification to its Terms of Service, without much, if any, communication as to the changes. The equivalent of releasing a press statement on A Friday afternoon so as to avoid above-the-fold coverage the following morning. In response to a reader tip, a February 15, 2009 article by Chris Walters in Consumerist titled “Facebook's New Terms Of Service: "We Can Do Anything We Want With Your Content. Forever," spread like wildfire.
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.
For even the layperson, the scope and breadth of the new, somewhat abstruse terms were ridiculous. The terms were fraught with legal landmines, and sweeping enough in scope and breadth to probably render half of them invalid anyway.
If Facebook owns all our content, some clucked and twittered and pinged and bonged, even after we have terminated our accounts, does this mean they are liable for any of the illegal content we upload? Not quite.
Under the Communications Decency Act (CDA) of 1996, which most media outlets reported as having been struck down in the wake of a couple of Supreme Court decisions challenging specific provisions of the legislation, Service Providers are not liable for third party content. (Disclosure: I was personally involved in both challenges heard by the Supreme Court –filing an amicus brief in the first, Reno v. ACLU, and as the plaintiff in the second, ApolloMedia v. Reno).
Of course if Facebook was to exercise some of the rights they were laying claim to in the new terms, such as the license to “reformat, modify, edit, frame, translate, excerpt, adapt” or “create derivative work” from, they would cease to be merely Service Providers, or, Information Exchange Providers, (as CEO Mark Zuckerberg positioned Facebook in his unconvincing justification in the wake of the backlash), but Content Providers, for whom a whole different set of rules applies.
A few remarkable things happened. In an age where Privacy and Terms of Service are all but ignored, the fact that so many people were paying attention was astounding. But more interesting was that the outcry seemed to include many people who are ensconced in a culture where expectations around ownership of intellectual property are that it should be free.
Musicians, artists and filmmakers have been forced to rethink ownership of the fruit of their creations, where their music is given away by attaching it to a product. Not that long ago, top musicians would never dream of allowing their music to be used in commercials, lest they be accused of selling out. Only now do we see Ford using David Bowie’s 1969 “Space Oddity” to hawk the Lincoln MKS (despite the bizarre inappropriateness). Madonna, on the other hand, used “Hung Up” to sell Motorola before the song from her Confessions album was even released for the sake of the music.
Facebook's seizing control and ownership over the content belonging to the average user highlights an evolving and fundamental paradigm shift in how people view intellectual property. As the distinctions between user generated content and “editorialized” content become blurrier by the minute, so do the lines between treatment of customers as active stakeholders, as opposed to simply passive consumers.
This bodes well for creators of content, who are looking for ways to monetize the fruits of their labor, as consumers become less likely to be offended by the notion of paying for premium content – based solely on the quality of the content and reputation of its creators.
It may turn out that Facebook, in spite of its about face, inadvertently ushered in the turning of an inevitable tide.
Causes Clinton Fein Supports
First Amendment Project
The Humane Society of the United States (HSUS).
Servicemembers Legal Defense Network