[I’ve posted a followup in light of Facebook’s response, i.e. rescinding the new terms Facebook Rescinds Its New, Unfriendly Terms of Use in Favor of Its Old, Unfriendly Terms of Use. Further, 25 Things About Facebook’s Terms of Use and Your Rights, discussing the current problems and where we go from here. Also, some thoughts on the even newer, much better Terms Facebook has proposed.]

Now that we’ve covered whether Facebook can slip new terms into the service and whether they can enforce their terms at all, it’s time to look at what the new "Licenses" terms mean.

Facebook’s new "Licenses" section says:

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


(ii) enable a user to Post, including by offering a Share Link on your website


(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. 

We’ll come back to the bolding. For now, I reformatted it to make the distinct sections clearer* and italicized the portions that aren’t unusual, as you can see from Amanda French’s comparison of the terms at MySpace, Yahoo’s Flickr, Google’s Picasa, YouTube, LinkedIn and Twitter. For any of these sites to function, they need at lease some license to use your content.**

The main difference is that MySpace, Flickr, Picasa, YouTube and Twitter all explicitly recognize that their license to such "User Content" ends upon your termination of the service or your removal of content. Facebook and LinkedIn don’t — once you provide content, they have a license to use it forever.

There are three other important licensing differences. Under the new Terms you:

  1. grant Facebook a license to all content you enabled someone else to post,
  2. grant Facebook a right to use your name and likeness, and
  3. grant Facebook the right to use content and your likeness not just for purposes of Facebook’s service, but also in Facebook’s promotional efforts.

That’s a lot to swallow, particularly since you can’t ever revoke any of it.

Good thing Mark Zuckerberg, Founder, CEO and Board Member of Facebook (keep those last two in mind), jumped in to respond to the criticism:

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.

In reality, we wouldn’t share your information in a way you wouldn’t want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work. Our goal is to build great products and to communicate clearly to help people share more information in this trusted environment.

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.

Soothing words, or much more? 

Go back to the bolded portion of the license term above, which limits the license users granted to being used "on or in connection with the Facebook Service or the promotion thereof." What the heck does that mean? The Terms define "Facebook Service" as follows:

The "Facebook Service" means the features, services and properties that Facebook makes available through (a) www.facebook.com or any other Facebook-branded or co-branded website (including, without limitation, any and all sub-domains and all international, mobile versions and successors thereof), (b) the Facebook Platform and (c) other media, devices or networks now existing or later developed.

That doesn’t really help — what does it mean for content to be used "in connection with" Facebook?

Would that include, say, Facebook leveraging the "25 Things" meme and publishing its own book of other people’s "25 Things" posts? Or could Facebook, as the founder of Rocketboom worried, use Rocketboom’s videos 30 years down the road?

Under the literal meaning of the new Terms, both would appear possible, and there would be nothing users could do about it. Zuckerberg’s reference to "email" is a dodge — email services don’t arrogate to themselves any publishing rights beyond your initial sending, certainly no rights to use your emails to promote the email service.

But Zuckerberg’s dodgy, soothing email has much more legal meaning than he and his team probably realized. The Terms themselves note that "We reserve the right, at our sole discretion, to change or delete portions of these Terms at any time without further notice."

Did they just do that? That is, does Zuckerberg, the CEO and a Board Member, have the authority to bind Facebook to changes in their Terms?

Recall that disputes under the new Facebook Terms are governed by California law, under which "a corporate officer may have express authority to enter into an agreement on behalf of the corporation." Snukal v. Flightways Mfg., 23 Cal. 4th 754, 779, 3 P.3d 286, 305, 98 Cal. Rptr. 2d 1, 22 (2000).

Even if Zuckerberg doesn’t have the express authority to change the Terms, he may have the implied authority given his preeminent role in the company and, perhaps most importantly, he has the apparent authority to bind the company to contractual terms.***

Users thus have every reason to incorporate Zuckerberg’s blog post into their interpretation of the terms. Zuckerberg specifically said that "control" over sharing "has remained constant" across the new and old Terms and that "we wouldn’t share your information in a way you wouldn’t want." 

That is to say, Zuckerberg just clarified what’s meant by "in connection with the Facebook Service:" the "Facebook Service" has a philosophy of ensuring user "control" over content sharing, and does not share information in a way users don’t want.

Would that fly in front of the JAMS-appointed arbitrators in Santa Clara county?**** Facebook doesn’t know the answer to that any better than I do, but I bet it would work. Companies are cross-examined with the words of their CEOs and officers every day in trials and arbitrations across the country.

It’s a legal risk I’m personally willing to take.

Until they modify the Terms again, that is.



* Did you catch the typo at the beginning of (b)? They split the infinitive "to use" at subsection (a) but repeated "to" a section (b). Reading the terms literally says you grant Facebook "… worldwide license (with the right to sublicense) to to use your name, likeness …"

** Facebook has replied that they don’t "own" your content, and that’s partly true, the Terms don’t claim any exclusive license or ownership right to your content, but they do claim a transferrable, non-exclusive license, which is all they could really want from you anyway.

*** Indeed, under the Snukal case it’s quite possible that Zuckerberg would be considered as having both "operational" and "recordkeeping or financial duties," making his words irrefutably binding on the company, just as they were for the defendant in that case. 

**** Also a new provision, which I’ll discuss tomorrow.