It's February 16. Do You Know Where Your Facebook Photos are?

On February 4th, the largest social network by all accounts, Facebook, quietly updated it’s terms of service to grant itself an unending and irrevocable license to use all content ever uploaded to its service.

Photo by  pshabThis is fundamentally not all that out of sorts from what most services do when licensing user content, but their lawyers are clearly a a few cards short of a full deck of 52. Consumerist says it best:

Want to close your account? Good for you, but Facebook still has the right to do whatever it wants with your old content. They can even sublicense it if they want.

I’ve begun advising people, clients and otherwise, not to upload any content to Facebook except links. Links merely point to the actual content. Most blogs and content site these days provide a “Share with Facebook” tool that will allow readers (or yourself) submit content to Facebook. The sticky point is that you are not actually uploading the photo, or the video to Facebook itself. Merely an excerpt and thumbnail.

If you run a blog and you use Facebook, drop everything you’re doing and go over to AddThis, sign up to use their free widget and install it. We have it here and it’s a great enabler for readers that allows readers to share with more than just Facebook. Try it on this post.

Unfortunately, there’s no retroactive immunity. Like Congress with the Patriot Act and Stimulus Bill, this thing slid through in the dead of night without so much as a peep and you’re expected to swallow the pill and be happy with it. Facebook never offered you a chance to decline the new TOS, nor did they offer to grandfather content previously uploaded. So feel free to delete stuff you never meant to give away for any constructive or nefarious purpose out there – it’s gone.

I would caution against simply abstaining from Facebook, however. It is the worlds largest social network for a reason and avoiding it will mean a significant cost to your company, brand, etc. However, be wise in how you actually share that content.
— Photo by Pshab

Update: Facebook CEO Mark Zuckerberg clarifies.

One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created””one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message. We think this is the right way for Facebook to work, and it is consistent with how other services like email work. One of the reasons we updated our terms was to make this more clear

-snip-

We still have work to do to communicate more clearly about these issues, and our terms are one example of this. Our philosophy that people own their information and control who they share it with has remained constant. A lot of the language in our terms is overly formal and protective of the rights we need to provide this service to you. Over time we will continue to clarify our positions and make the terms simpler.

Whoops. Facebook fumbles again.

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Aaron Brazell

Aaron Brazell is a Baltimore, MD-based WordPress developer, a co-founder at WP Engine, WordPress core contributor and author. He wrote the book WordPress Bible and has been publishing on the web since 2000. You can follow him on Twitter, on his personal blog and view his photography at The Aperture Filter.

5 thoughts on “It's February 16. Do You Know Where Your Facebook Photos are?”

  1. I wonder if this isn’t another example of their legal team’s incompetence. There was a similar issue with uploaded photos not to long ago which they quickly reversed/clarified.

  2. I know of media blogging sites that pull this same stunt, but they at least included it in the TOS from the start. It wasn’t nearly as sneaky as this stealth TOS update.

  3. They’ve responded here: http://blog.facebook.com/blog.php?post=54434097130 but it doesn’t explain everything. It doesn’t defend the line : “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.”

    I’m angry, and I’m also angry that I now can’t go and delete my RSS feeds (that it says only I was signed up to anyway on this particular app).

  4. (Aaron, I posted the following as a comment on your Facebook as well. Sorry for the double post, but I am curious to know what your other commenters might make of this.)

    Unless I misread the Terms of Service completely, Facebook does indeed claim a license to all the content you link to, not just what you upload onto their servers. Legally the TOS makes no distinction between linked and uploaded content. I’m not a lawyer, but this seems pretty clear to me. The relevant clause from the TOS:

    “User Content” means any photos, text, link, audio, video, designs, ads and anything else that you Post on or through the Facebook Service. “Post” means to upload, post, transmit, share, store, link to or otherwise make available on or through the Facebook Service.”

    This is a very broad definition of “post,” the operative phrase being “link to or otherwise make available on or through” Facebook.

    It goes on, “You represent and warrant that you have all rights and permissions to grant the foregoing licenses,” i.e., these terms would seem, at least technically, to prohibit you from posting anything over which you do not hold the rights. (And by “posting” I mean the sense defined in the TOS, i.e., including posting a link.) To me, this seems unenforceable. It also seems to run counter to the apparent purpose for which the “Share this on Facebook” feature was created, in the sense that it actually discourages anyone from “sharing” anything they don’t own (such as someone else’s photo, or a news article, or a YouTube video).

    And finally, in my view, Zuckerberg’s post amounts to “trust us and don’t bother reading the fine print.” I’m dubious, frankly. The language of the TOS may be “overly formal” but it is still a binding contract; Zuckerberg’s blog post doesn’t change that.

    Facebook’s TOS is at http://www.facebook.com/terms.php.

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