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Facebook: Your Content is Ours To Sell (Maybe)

Facebook: Your Content is Ours To Sell (Maybe)


This morning (February 18th, 2009), Facebook reacted to stories like this with the following announcement at the top of every user’s page:

“Terms of Use Update

Over the past few days, we have received a lot of feedback about the new terms we posted two weeks ago. Because of this response, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised. For more information, visit the Facebook Blog.

If you want to share your thoughts on what should be in the new terms, check out our group Facebook Bill of Rights and Responsibilities.”

This marks at least the second time that Facebook has let their users override recent changes about user information. This keeps them in the valueable position of developing the model of how to migrate a user community to a business plan, and for the most part, keep the users on board.

A change in the Facebook Terms of Service (TOS) spotted by Chris Walters at says all your posted photos, content, and documents are the property of Facebook to sell forever. While I understand why the alarm bells are going off (uh, no, that’s not a bell in my hand), I understand why Facebook would need to change their TOS.

You won’t be visited by three ghosts that look like Muppets to warn you about this, just me. The TOS agreement will inevitably change again – and it may even be changing as I write this article.

What Does The New Terms of Service Agreement Mean?

I’m not a lawyer nor do I play one on the web, but do you remember how mad you got when that photo of you at the frat and sorority mixer was posted in a Facebook album by your former friend? It can now be sold by Facebook and wind up, for argument’s sake, in an ad campaign. It can be done without your permission. Quitting Facebook won’t solve it either.

This is the TOS as it read on February 16th, 2009 at 0Z GMT/8 PM EST:

“… 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.”

WWFDt: Why Would Facebook Do this?

Facebook is our friend. It keeps friends and families closer, and brings lost members back home to us. But in reality, it is a business that has, to its credit, often tried to maintain a conscience. Their base knows that creating a Facebook group (or groups) is an effective way to voice their opinions. I found one large group, but that at this writing it could not be found using the Facebook search engine.

A few weeks ago I wrote how Facebook is positioning itself to develop one of the world’s largest marketing databases.

Facebook CEO Mark Zuckerberg blogged about the changes in a post called “On Facebook, People Own and Control Their Information.” This was a direct assault on the article title (“Facebook’s New Terms Of Service: “We Can Do Anything We Want With Your Content. Forever.”)

Zuckerberg does raise an interesting paradox in the post.

“People want full ownership and control of their information so they can turn off access to it at any time. At the same time, people also want to be able to bring the information others have shared with them–like email addresses, phone numbers, photos and so on–to other services and grant those services access to those people’s information. These two positions are at odds with each other. There is no system today that enables me to share my email address with you and then simultaneously lets me control who you share it with and also lets you control what services you share it with.”

Even if there was such a system, would the user base even take the time to adjust the permissions each time?

While the post does read like a “trust us” piece, they haven’t rolled out enough public information about their marketing data warehouse to know if we can trust them. The likely reason is that from a business standpoint it is not ready to be fully announced.

CNET quotes Facebook spokesperson Barry Schnitt as stating “We are not claiming and have never claimed ownership of material that users upload.” CNET also points out that “Facebook’s terms of service [today] do say that “User Content and Applications/Connect Sites” are exempt from its claims on content ownership.”

What scares me is not that Facebook will have a ton of personal content, or that a search engine company owns everything you type in the search bar – but what happens when they all get together and create a massive personal profile. As technology evolves, it will be near real-time. It will know when you will be statistically likely to purchase a product. On the dark side, could it be used to deny a person health insurance or your child’s admission to a college?

In a seemingly unrelated story (unless you care to connect the dots), the Federal Trade Commission (FTC) last week issued their last (non-binding) warning to the advertising industry on behavioral advertising.

The 55-page report states that behavioral advertising, or the “… means the tracking of a consumer’s online activities over time – including the searches the consumer has conducted, the web pages visited, and the content viewed – in order to deliver advertising targeted to the individual consumer’s interests” needs some guidance in four areas:

1. Transparency and Consumer Control

Let the customer understand and opt in or out of what is being recorded – and explain why. How companies are going to explain the implications of data collection is beyond me – I’m still explaining Twitter and iTunes to people.

2. Security, and Limited Data Retention of Consumer Data.

“Companies should also retain [and protect] data only as long as is necessary to fulfill a legitimate business or law enforcement need.”

3. Affirmative Express Consent for Material Changes to Existing Privacy Promises.

In English, a company must keep its promise how it uses information, even if the policies change at a later date. The consumer will have to give their consent to upgrade the permissions. In practice today, web sites today reserve the right to change their agreements at any time and do.

4. Affirmative Express Consent to (or Prohibition Against) Using Sensitive Data for Behavioral Advertising.

Companies should collect sensitive data for behavioral advertising only after they obtain clear permission from the consumer to receive that advertising.

Zuckerberg’s post may have said it best, for both Facebook and inadvertently for the FTC: “It’s difficult terrain to navigate and we’re going to make some missteps, but as the leading service for sharing information we take these issues and our responsibility to help resolve them very seriously. This is a big focus for us this year, and I’ll post some more thoughts on openness and these other issues soon.”

Wayne Kurtzman is a senior marketing analyst who loves the shiny toys of technology and online communities. He has led knowledge management and web analytics practices for startups and larger companies including Intel. Wayne also is active at the international level of Destination ImagiNation, a not-for-profit organization that fosters teamwork, innovation, and creative problem solving skills in students from kindergarten through college.

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