Balkinization: Facebook's new Terms of Service: How unclear copyright law creates privacy problems

Facebook's new Terms of Service: How unclear copyright law creates privacy problems

Guest Blogger

Margot Kaminski

On February 4, Facebook altered its terms of service, sending users into such an uproar that the site recanted the alterations and asked for active help in creating new terms. The first issue worth examining is how Facebook’s terms of service, both old and new, compare to those of other online service providers (OSPs), and what changes the alterations were meant to effect. This gives us a basis for considering whether Facebook’s goals were worthwhile, and if so, whether there might be better legal ways of reaching them.

The second and broader issue, however, is why the landscape of OSP terms-of-service looks the way it does. The conflict raised by Facebook’s—and really, most OSPs’—terms of service has been described mainly as a privacy issue: users were primarily afraid of the privacy implications of not being able to erase photographs once they’d put them up. This privacy issue, which is not to be confused with a legal privacy claim, is in fact at its root a copyright problem. Our legal system has yet to figure out the best way to handle intellectual property online, and the lack of clarity has given rise to important concerns over control of information and privacy online.

Intellectual property has always been linked to individual identity. If you write a novel, that novel is an expression of who you are. European copyright law acknowledges the link of personhood and IP through a doctrine known as “moral rights:” an artist can, for example, sue if his or her work has been defaced. U.S. law contains a watered-down version of the same idea. Social networking makes the link between copyright and identity even more explicit. The photos you post on Facebook or Flickr are more closely linked to your identity than a parody video posted anonymously on YouTube. When copyright and identity are this closely linked, problems in copyright law lead to problems (albeit not necessarily legal problems) in privacy online.

The common features in OSPs’ terms of service indicate that copyright concerns are the basis of the conflict. Much of the criticism of Facebook’s new license emphasized the “ownership” of user content. In reality, Facebook’s terms of service give it a “non-exclusive license” to user-created content, which still allows you, the content-producer, to do whatever you want with your content: distribute it, display it, even sell it to somebody else. What it does not allow you to do is prevent the licensee from reusing the content or keeping the content in public distribution under the agreement’s terms. This type of license is universal among OSPs: Google has a non-exclusive license to your content, as does Yahoo!. OSPs generally, including Facebook, also clarify that they do not assert ownership in your content.

The next question is the scope of the license: what the specific non-exclusive license allows the specific OSP to do. Broadly speaking, it appears that most OSPs’ licenses to user content, while vague as to boundaries, are not intended to exceed the uses intended by the user. Google/Picasa, Flickr/Yahoo!, Kodak, and Facebook all specify in some fashion that the licensed content will be used in connection with the services they provide, or in the case of Google/Picasa and the redacted new Facebook terms, in promotion of those services. Facebook’s redacted new terms also clarified that all usages would be in accordance with a user’s privacy settings, further restricting use of the content to what a user might reasonably expect.
The change that probably aggravated Facebook users most was the claim that content would be usable by the site in perpetuity. Nobody liked the idea that by leaving the site or taking down pictures, they could not take the pictures out of Facebook’s control. Even here, however, Facebook was not far out of line with the current landscape of user agreements. Google and Yahoo! both claim perpetual licenses to non-pictorial content such as postings or emails. Google, however, agrees to end its license to Picasa images within a commercially reasonable time after they have been removed, while Yahoo ends its license to pictorial content immediately after the content has been removed. What Facebook was claiming in addition to the usual OSP terms was a perpetual license to pictorial content such as videos or photographs.
Why would an OSP need a perpetual license to emails? And why would Facebook think that it would need this extended to photographs as well? The short answer is copyright law.

Nobody has clarified the status of copyright law in the context of webmail or your Facebook inbox or Wall. Users might think of the contents of their inbox as belonging to them; just as you wouldn’t expect a physical letter to be destroyed when the author decided to leave the US postal system, you wouldn’t expect an email to disappear out of your inbox when the author left his or her OSP. In the current unclear state of online copyright law, an OSP might worry that without a perpetual non-exclusive license to written content, it might have to go into other users’ inboxes and clear them out each time a user leaves. Facebook, whose use of pictorial content is more oriented towards sharing and communication than Google/Picasa’s and Yahoo!/Flickr’s “web albums”, likely used the same reasoning when deciding that it needed a perpetual license to photographs as well. Facebook users might find it strange, even invasive, to go back through their inboxes and find photographs missing because users left. Or they might not, and might prefer to err on the side of user discretion for photos. This is the big issue that must be decided in the next round of changes.

The larger point to be extracted here is that online copyright is still a morass of liability. OSPs such as search engines, webmail hosts, and social networking sites therefore cover their bases by writing terms of service that are as proprietary as possible. The reasoning is as follows: if OSPs own licenses to the content, then they cannot be sued for copyright violations.

All this is not to say that OSPs are the victims. As users have rightly noted, the mess of copyright law has pushed user content into the hands of companies, often with vague terms in the interest of avoiding liability. The copyright problem is now a privacy problem. It is my contention that it cannot adequately be addressed as such until we clear up copyright law enough that OSPs can no longer have a legitimate claim that these kinds of licenses are necessary or reasonable.
What’s missing in current law is an explicit outline of Internet norms that most people intuitively accept: a search engine can display content and aggregate data on your searches, but cannot store or reveal information about your identity; a social networking site can save your old messages in others’ inboxes, but can’t reveal your information or photographs without permission; a webmail service can’t publish your emails, forward them to marketing companies, or delete old emails in your inbox from somebody who’s gone offline.

These norms are not expressed anywhere in U.S. law. They could be expressed through legislation, as copyright law and as privacy law. Or they could get outlined in legal doctrine, by a number of courts carving out an acceptable realm of intellectual property use online. Several scholars have even proposed the acknowledgement of an “implied license” for online content. This would be an understood license, common to every OSP, for certain regular and accepted online uses of user content— and could require certain privacy protections that every OSP must in turn provide.

(Note that the above discussion addresses the user’s perception of privacy, rather than the legal question of privacy rights. The legal questions of privacy rights, publicity rights, or rights against defamation are generally not covered by copyright licenses and are outside of the scope of this discussion. Legal privacy problems might persist even if an OSP is granted copyright in the content. Furthermore, third-party privacy or publicity rights are not covered by copyright licenses: A may hold the copyright to a photograph of B, but B’s privacy and publicity rights in that photograph might not be extinguished by a license from A.)

Margot Kaminski is a student fellow of the Yale Information Society Project

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