Facebook CC Integration/Facebook ToS

The Problem

Quote problematic sections from current Facebook TOS (revised September 23, 2008 Current Facebook TOS (dated from Sept. 23 2008) is (CC from Amanda French)

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.

The current proposal of new terms says something similar (see: http://www.facebook.com/topic.php?uid=67758697570&topic=7569):

2.3 For content that is covered by intellectual property rights (like photos and videos), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of (“use”) any content you post on or in connection with Facebook. This license ends when you delete your content or your account.

Explanation

So, what are you giving to Facebook in section 2.3? Let's look at it one piece at a time:

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"For content that is covered by intellectual property rights (like photos and videos),"

All created material, whether it is words, images, sounds, etc... is automatically covered by copyright once it is "fixed in a tangible medium". In other words, set down in something that won't go away, such as written on a page, saved on disk, recorded on tape or in a computer's memory. You don't need to do anything to have a copyright. It exists from the moment you create something. (Registration is helpful if you want to take legal action, but it isn't "technically" required.) Since you created it, from your mind, or "intellect", it is your "Intellectual Property". Copyright is literally the "right to copy" this intellectual property.

"you specifically give us the following permission, subject to your privacy and application settings:"

Since it is yours, nobody is allowed to do anything with it without your permission. This is you giving permission to Facebook to do certain things. The things that follow are general, but they are limited by your privacy and application settings. In other words, they can't do something that you have specifically said they couldn’t via those settings.

" you grant us a non-exclusive, "

Just because you gave permission to Facebook, doesn't mean you can't give it to other people to! This is very important.

"transferable, "

If the ownership of Facebook itself changes, these rights can be "transferred" to the person who bought them. When rights transferred, the former right holder gives them up, and only the new one can act on them.

"sub-licensable,"

Facebook can give these rights to others. This is also important, because without this, Facebook could never actually share your stuff - even with your friends. The thing to remember is that this is subject to your settings, as described earlier.This is especially important with regards to the "applications" you may use on Facebook - these are not Facebook's and therefore in order to allow them to work, Facebook needs to delegate (sub-license) these rights to the application providers.

" royalty-free,"

You aren't charging Facebook for the use of this property. "Royalties" are what are paid to the creative types by the publishers in exchange for their permission to actually do the publishing. Since you really only want Facebook to share your stuff as you direct, you don't want to charge them to do it.

" worldwide"

Facebook is everywhere!

" license "

This is just the legal term for "permission". That's why those things you have to go to the DMV to get every few years are called "Driver's Licenses". When you pass their test, and pay their fee, the government gives you permission, or a license, to drive a car.

"to use,"

This is the general thing you are giving Facebook permission to do. It is further clarified as:

" copy,"

Because even the act of moving a picture from Facebook's storage disk to your friend's PC is legally considered copying, you need to give them permission to do that.

" publicly perform or display,"

This means Facebook can actually show your stuff to someone else. Like your friends. Obviously, you need them to be able to do that.

"distribute,"

Because the act of giving the picture to your friend is distinct from the act of just making a copy or showing it, Facebook needs this right as well.

" modify, translate, and create derivative works of"

Do you like having thumbnails of your pictures in a gallery? Guess what - that's a modification. It is smaller than your original picture. Similarly, once that modification is created as a file, that file is considered a "derivative work" of your original picture, so they need the right to do that, too. This can also be considered a "translation", but in some cases there may also be a literal translation involved. Do you want your friend in France to be able to read your messages in French? This gives Facebook the right to translate them for you. (And yes, saving the translated text counts as creating a derivative work, too!)

" (“use”)"

This is just collecting the detailed terms back into a simple word that can be used elsewhere in the agreement. Thus, when you see the word "use", you know that it includes all of the terms defined above.

" any content you post on or in connection with Facebook."

These permissions apply to all of the stuff that you upload or otherwise enter into Facebook, whether directly, or through other channels. (e.g. a Twitter feed.)

"This license ends when you delete your content or your account."

Once you take something off of Facebook, they can't do anything with it anymore.

Analysis - Problems

The First Problem is 2.3 is totally opposite of the proposed second Facebook Principle, which says "People should have the freedom to decide with whom they will share their information"

But such an open statement (current and proposal) leaves it open to abuse.

Who is to say that "transferrable" doesn't mean that Facebook can transfer the content and license to third parties? If it was meant in the case of the company changing hands, it should specifically state that.

Who is to say that the derivative works are only "thumbnails" etc? Who is to say that they are not modifying them and selling them through other sites? It should be explicitly defined what they intend to do with the content.

Who is to say the "distribute" means just to distribute to other Facebook users and not to third party companies?

There is NO REASON why Facebook cannot extend this to explain their intentions more clearly (or further define the individual words/phrases in laymen's terms, as you have done, for the benefit of the users that do not understand this legalese).

Copy, distribute, modify, create derivative works, and sublicense are much broader terms, and while they do need to be circumscribed by extra verbiage (e.g. the reference to application and privacy settings), they can't be replaced because they describe precisely, legally, what Facebook needs the right to do in order for their service to operate.

Response to Concerns

In response to your concerns, no, Facebook does not have the right to use content in any way other than to display it on their website. The display on their website is subject to your own privacy settings, so they can't use, or show your photograph to anyone outside your friends list if that's the privacy setting that you've selected.

Without the express granting of a commercial license, Facebook is not allowed to use their users' intellectual property for any commercial purpose.

The license granted DOES only apply to Facebook and the User, because they are the only two parties participating within the agreement. Any sublicenses granted by Facebook are still governed by the Primary license, thus continuing to negate any semblance of a commercial license.

Proposed Solutions

While it is clear that the 'non-exclusive' license granted to Facebook by users does not exclude users also licensing their content under a Creative Commons license, we request the language "subject only to your privacy settings" be changed to "subject only to your privacy and license settings", and that license selection interface be added to user profiles and content uploads.

This is because, Facebook users should have the ability to choose not only with whom they want to share their content, but whether to grant commercial license or not, as well as whether to allow copy and remix or not.

All the 2.* clause in the ToS should be written in a Human readable (no Lawyer-readable) format and with enough detail to avoid misunderstandings.