What Does the Recent Facebook Terms of Service Update Really Mean?

There has been a lot of noise across the Internet over the last two days about a recent update to the Terms of Service on social networking mega-site Facebook. Users are concerned that the new language gives Facebook ownership of the content posted by users.

Two sections of the TOS are the center of the outcry. Let's handle this section first:

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

Let's break that down. Section (a) basically just says that you are uploading content to Facebook and by doing so you give them the right to show it to the world through their website. This should be a no-brainer. In reality, this language is required to protect Facebook from the ungracious user who one minute wants to upload a video of themselves doing the Macarena and then the next minute wants to turn around and sue Facebook for copyright infringement when Facebook "distributes" the content by letting other people watch it or Facebook makes a copy in some perfectly acceptable way, such as transferring it to another server. I wouldn't get yourself riled up about that at all.

Secion (b) is a little more of a concern. In short, it says that Facebook can use your images, name, etc. for their own promotional purposes. Although it's slightly scary, I wouldn't lose any sleep over it. The right to privacy is rather highly regarded in US courts (see also the right to publicity). I suspect that if Facebook really tried to use your content (especially content including your image) without getting your permission first (other than the permission you presumably give them through "acceptance" of the TOS) you could shut it down real fast by seeking an injunction and possibly threatening other action. The last thing an outfit like Facebook wants is bad publicity about how it takes its users' pictures and plasters them all over the Internet.

Next, there is a section that provides:

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.

This is pretty standard stuff. It just means that if you delete content off the Facebook website they aren't going to take all the technical effort to go and scour their backup servers to make sure it's deleted everywhere. To some degree they can't do that, because they might be deleting information that would later be the subject of a lawsuit and then they'd risk ending up in hot water for not preserving relevant evidence.

In the end, the only part that I really don't like is that they can use you to advertise. But let's see them try that without a tidal wave of bad publicity and legal fallout.