Facebook: “Platform?” Or “Co-Owner”

Plenty has  been written about recent changes in Facebook’s Terms of Use  (See: NY Times “Wrap-up”) but  the kerfuffle raises serious questions about the “concept” – the form, function and purpose — of platforms like Facebook and the relationship those platforms have to their users’ personal, private  “belongings.”  (The distinction between public and private is integral to the question because in law, if you tell friends in a public setting  that you’re a drug addict, you probably don’t have a cause of action when someone else repeats or publishes the information. Facebook users believed, rightly or wrongly, that they were sharing in a private or semi-private setting. Why?  Because Facebook is a private website with walls that provide for private sharing  in a way that The Huffington Post, for instance, would never conceive.)

Facebook acts like a giant convention center where people meet for private and  semi-private interactions.  We exchange things that matter to us with particular groups of people.  In support of that exchange, Facebook provides friendly rooms where, if we have permission, we can ooh and ah over each other’s photos, artistic efforts, political doings and  family events.  In terms of cyber-relationships, it’s a one-stop-shop or very like  hosting an open house for your friends and their invitees.

As a convention center, Facebook provides space and services.  However, it has broadened the concept of the host relationship to include joint ownership and control over the distribution rights of the personal thoughts and “objects”  we share within its walls.  For instance, Facebook can alter and distribute your images for profit/promotion.

Facebook says its rationale is based on user privacy settings.  If the owner of a photo displays it using the Facebook Photo application, by extension, the owner is giving Facebook the same distribution rights as the owner retains.

Imagine speaking at a family or class reunion and discovering  that the hosting  hotel  has the perpetual right to distribute what you say or the items you display.

Imagine showing your artwork in Central Park to a million strangers and having the City of New York lay claim to the distribution rights of that work.

Thousands of Facebook members imagined it and rebelled.  A few hours ago, Facebook notified our home pages that it will temporarily return to the old rules pending a review of customer concerns. The notice includes a link to a new group where members can suggest changes to the Terms of Use.

Facebook also posted the following reassurance:

1. You own your information. Facebook does not. This includes your photos and all other content.
2. Facebook doesn’t claim rights to any of your photos or other content. We need a license in order to help you share information with your friends, but we don’t claim to own your information.
3. We won’t use the information you share on Facebook for anything you haven’t asked us to. We realize our current terms are too broad here and they make it seem like we might share information in ways you don’t want, but this isn’t what we’re doing.
4. We will not share your information with anyone if you deactivate your account. If you’ve already sent a friend a message, they’ll still have that message. However, when you deactivate your account, all of your photos and other content are removed.
5. We apologize for the confusion around these issues. We never intended to claim ownership over people’s content even though that’s what it seems like to many people. This was a mistake and we apologize for the confusion.

Further, Barry Schnitt, a Facebook spokesperson said, “We certainly did not — and did not intend — to create any new right or interest for Facebook in users’ data by issuing the new terms.”  (Italics added for emphasis.) (See: NY Times “Wrap-up”)

Unfortunately, Mr. Schnitt is mostly correct. Facebook already had “perpetual” distribution rights. The old Terms of Use state,

“By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. 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. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.”  (Terms of Use, revised September 23, 2008)

If you know of a “community” platform that doesn’t lay claim to distribution rights, please tell us.

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