Introduction

There has been some recent controversy over Facebook‘s Terms and Conditions: specifically, it seems that these Terms imply that they own any Content that you post to the site. When I first heard about this on 1st October 2007, I thought that it couldn’t be right. A company couldn’t just bury that in their Terms and Conditions� could they?

I decided to go through it, and having assauged my own doubts, I felt it was worth explaining in detail to anyone who is interested. Hi to anyone visiting from a group set up about this.

Disclaimer

I am not a lawyer. This is my interpretation of this policy, intended to help inform people about what exactly is going on. These are entirely my views and do not represent the views of Imperial College, its Computing Department, or any other persons or organisations, mentioned or implied.

This page is accurate as of Tuesday 2^nd October, 2007.

So what does it say?

The full content of the policy is below (taken at 23:44 BST on 1^st October, 2007):

User Content Posted on the Site

You are solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post. You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including without limitation User Content that in the sole judgment of the Company violates this Agreement or the Facebook Code of Conduct, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company.

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. 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 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.

Let’s take this apart

OK, so let’s take this apart almost sentence by sentence and see what it gives us, and what exactly they say.

You are solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”).

This appears to be quite straightforward. They are saying (in a rather long-winded way) that anything you post to the site or share with other users is called �User Content� and is your sole responsibility. Therefore if there is some legal trouble, it is you the poster who will get burned.

You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post.

This is also a fair point: if you neither own it nor have permission to share it, then you should not post it on Facebook. You could start arguing about fair use under copyright law here, but we will stay away from that for now as that is not the issue we are discussing.

You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including without limitation User Content that in the sole judgment of the Company violates this Agreement or the Facebook Code of Conduct, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others.

Wow, this is quite lengthy. This boils down to self-policing of Facebook. The Company may review the site (but it doesn’t have to) and can decide that some Content should be removed. It doesn’t have to supply a reason, but it will remove Content that violates the Terms of Use, the Code of Conduct, or any Content which is offensive, illegal, threatening, etc.

You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company.

Although Facebook may take backups, this is for their own internal reasons and they should not be relied upon. If you put anything crucial here, make sure you have a copy yourself; you can’t go crying to them if you lose it. They may try to help, but don’t count on it.

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site.

This section is there to cover themselves against the fact that the files you upload may be copied between servers internally, for performance reasons. This next part has caused the controversy, and so merits careful and detailed examination.

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

If you post Content to the Site, you imply that you have permission to do this, and that you may grant permission to others.

an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense)

A licence which:

1. cannot be revoked
2. lasts without a time limit
3. is not exclusive to the Company (i.e. you can grant use of the Content to other people)
4. may be transferred from the Company to another individual or organisation
5. does not require the Company to pay you
6. can be used worldwide without restriction (as Facebook is a global website)

You also grant the ability for Facebook to sublicence this Content under the above terms at most, but potentially under more restrictive terms.

to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content

A list of all the things they wish to be able to do with this Content if they so choose.

for any purpose 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.

A re-iteration of their permission to sublicence the Content, preceded by other things they may wish to do. For example, if Facebook wished to produce a series of adverts, they would be perfectly within their rights to use screenshots of the site with user photos or other details in those screenshots � that is covered by this part of the sentence, as a derivative work.

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.

Finally, Facebook offer you protection: if you do not want your Content used in this way, or you choose to remove it for any reason of your own, you immediately invalidate their licence to use the Content. However, they may still have backup copies of the Content which it would be infeasible to track down and eliminate.

Conclusion

While Facebook may be overstepping the mark slightly with requesting the right to sublicence your Content, I still feel the Terms are reasonable. They certainly make no mention of transfer of ownership, but neither do they make clear that ownership stays with the original creator. In their position, I would amend the terms to make this absolutely clear, and I would reconsider the sublicensing clause (or at least provide an explanation for it).

If anyone would like to make any comments about this page, please feel free to drop me a message on Facebook!