[Update — I’ve posted followups, What Do Facebook’s New Terms of Use Mean for Your Content? and Facebook Rescinds Its New, Unfriendly Terms of Use in Favor of Its Old, Unfriendly Terms of Use. Finally, 25 Things About Facebook’s Terms of Use and Your Rights, discussing the current problems and where we go from here.]

Yesterday we talked about Facebook’s new "Terms of Use," delivered to users by stealth, and how users who wanted to leave could likely enforce the old terms, which didn’t include the new controversial licensing provisions.

Right now we’ll talk about whether the new terms are enforceable, and later we’ll talk about what they mean for your content.

There are two general types of website Terms of Use (or Service): "click wrap" and "browse wrap." Both unfortunately named after "shrink wrap" terms, i.e. the terms of software programs that purported to apply to the buyer the moment they tore off the plastic shrink-wrap around the box the software came in.

And that’s about as concrete as the law gets here. As noted by a recent law review article, depressingly not available online, "amazingly few appellate opinions on point exist, and generally, the opinions are unrefined in their analyses." Cyber-Surfing on the High Seas of Legalese, 18 Alb. L.J. Sci. & Tech. 79 (2008).

As noted previously, Facebook’s new Terms state that California’s laws govern any dispute, so that’s where we should look for guidance, but California law isn’t much help. The California Supreme Court, which would decide the issue, hasn’t spoken on click wrap or browse wrap terms at all.

The most recent case I found was an unpublished California state appellate court opinion upholding a browsewrap agreement, noting that “there was nothing inherently unfair in requiring [the consumer] access contractual terms via hyperlink." Cohn v. Truebeginnings, 2007 Cal. App. Unpub. LEXIS 6232.

But an unpublished state court appellate opinion is among the weakest authorities you can have — California’s own courts frown on even mentioning them in legal briefs.

The most persuasive authority available seems to be Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002), a ruling on California law by a Federal appellate court that doesn’t even serve California (it serves Connecticut, New York, and Vermont):

It is true that ‘[a] party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing.’ Marin Storage & Trucking, 107 Cal. Rptr. 2d at 651. But courts are quick to add: ‘An exception to this general rule exists when the writing does not appear to be a contract and the terms are not called to the attention of the recipient. In such a case, no contract is formed with respect to the undisclosed term.’ Id.; cf. Cory v. Golden State Bank, 95 Cal. App. 3d 360, 157 Cal. Rptr. 538, 541 (Cal. Ct. App. 1979)

We conclude that in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.

Specht, 306 F.3d at 32.

Hmmm. Do we go with the unpublished California state appellate court or the published Federal appellate court opinion that has no authority in California?

Neither. The law is simply too unsettled to give a "right" answer one way or the other.

Which means common sense, tempered with caution, prevails: if you were a judge asked to decide whether a user in your shoes was bound to Facebook’s new Terms, how would you decide?

If you’re reading this post, you’re obviously aware of the new terms, so your continued use would appear to demonstrate an acceptance of the Terms.

But what if, as the Facebook Group "People Against the new Terms of Service (TOS)" has recommended, you email or otherwise notify Facebook of the following:

Notice to Facebook: Notwithstanding FB’s new Terms of Use, any use of my content is always subject to my privacy settings and FB’s use terminates upon my termination of my account or removal of my content, whichever is the earlier, unless longer to display my shared content on the accounts of my friends.

Truth is, no one knows. Keep in mind that, if it comes down to a lawsuit, if you want to enforce those terms you’re going to simultaneously argue that your use didn’t constitute acceptance of Facebook’s Terms while Facebook’s providing service to you constituted acceptance of your Terms.

What does your common sense tell you about that argument?

Next up we’ll look at the terms themselves and what they mean for your content.