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Wednesday, 18 February 2009

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They've reverted to the old terms for now in a move that the CEO describes as temporary. He claims that the new terms were intended to protect comments and content left by a departed owner on other users' pages.

http://news.bbc.co.uk/1/hi/technology/7896309.stm
http://blog.facebook.com

As of today they've retracted their new TOS so that they can re-think them.

http://consumerist.com/5155549/facebook-reverts-back-to-old-terms-of-service

Under pressure Facebook has reverted to their old terms of service.

However the old terms of service contain the following:

"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, commercial, advertising, or otherwise, 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."

The "outing" by consumerist really just made clear to everyone what was always true.

I think Facebook is just covering their a$$ in this age of lawsuit-happy people with a poorly written, scary sounding TOS. There's some funny stuff in there like, "..subject only to your privacy settings..". I don't know what that means exactly, but I know you can post photos on FB and make them available only to your selected friends (i.e. not publically viewable). If someone (one of your FB friends) comments on a photo in your account, a thumbnail of your photo appears on their page letting everyone know they made a comment (you can't do anything on FB without it being logged somewhere). To be safe (for the paranoid), I wouldn't post photos there. But in reality, I don't think it's a big deal. I could be wrong...

Yay for being vocal! I hope this means Facebook is addressing everyones concerns. For them to claim ownership of the material users post is just criminal.

(Posted on Facebook website on 2/17/09)
Terms of Use Update
Over the past few days, we have received a lot of feedback about the new terms we posted two weeks ago. Because of this response, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised. For more information, visit the Facebook Blog.

If you want to share your thoughts on what should be in the new terms, check out our group Facebook Bill of Rights and Responsibilities.

:-)

"Terms of Use Update
A couple of weeks ago, we posted an update to our Terms of Use that we hoped would clarify some parts of it for our users. Over the past couple of days, we have received a lot of questions and comments about these updated terms and what they mean for people and their information. Because of the feedback we received, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised."

http://blog.facebook.com/blog.php?post=54746167130

http://blog.facebook.com/blog.php?post=54434097130

And no, I'm not on Facebook although it could be worth it to prevent name hijacking, like what happened to a friend.

Man, what has the world come to, that I have to think about name hijacking...

My competitors should not only remove their photos from Facebook, but from the Internet entirely. It's the smart thing to do.

So what is Facebook if it is NOT content?

I don't post pictures on facebook. If I would, I would take the time to put a watermark across, a plug for my website in fact. Would make them useless commercially, and may direct potential users to where they could buy a licence to use them.
Because like it or not, what they do is legal, and the vast majority of users are not photographers, concerned about the use of their images. Which means whatever noise we make, they are unlikely to bow to us. Just because they would do just fine without photographers.

The terms are astonishingly (and unbelievably) broad. For example, it seems to preclude a Facebook user posting anything from someone else (unless that someone has granted the user an extremely license), including posting things in ways which would normally count as fair use. This presumably rules out quoting ... just about anything, including the Facebook terms of use.

Crap, this came just an hour too late. I already posted some new ones.
Well, damn them, their employees, their families and their pets if they use my pics!!
Mmm, I don't think that's gonna work anyway.
I just came from Brazil. They do have all these african religions and umbanda priests there, I should have got a copyright-protecting voodoo doll.

I think a lot of this has to do with Facebook having the right to grant your chosen permissions in terms of sharing. I wonder if it has more to do with protecting themselves than owning your personal content?

On the other hand Facebook is acting like a Rep an Agent, a PR firm and it is all for FREE!

Sounds like a pretty good deal in many ways.

Sounds like lawyers fighting with lawyers.

Caveat: I have not researched this, so this is a surface understanding:

But I think Facebook's concern is that the way the site works, if you post a picture, Facebook distributes little copies to your friends etc. That's what social networking is all about. If you later withdraw from Facebook, they don't want to have to remove all your content -- pictures, posts, etc. -- from the profiles of all your friends who got those little notifications about your new pictures, your trip to Botswana, your philosophical musings while riding the bus.

Also re: the Google Picasa vs. Facebook comparison. Google owns Facebook. So they are the same entity. I think the difference in terms reflects the fact that Picasa, because it is not a social networking site, does not distribute little bits of what you post to all your friends and acquaintances, and therefore does not need permission to do so, or permission to leave those distributed bits where they are if you withdraw from Picasa.

Just fodder for discussion; again, I have not thoroughly researched this.

I don't think their claim can reasonably be described as "we own your stuff". While I'm not overwhelmed with the total wonder of even their older terms of service, I still think it's important to blame them only for what they're actually doing, not our fantasies about them.

In particular, the new terms seemed to me to limit their claims to rights to display the site itself (clearly necessary), plus rights to use content on the site in promotion for the site (arguably reasonable). My only worry was that "promotion" could possibly turn out to be used like the "commerce clause" in the Constitution to justify just about anything, maybe. (The key phrase in the new terms seemed to me to be "each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof".)

I don't remember Google owning Facebook. I distinctly remember when fb got venture and had free pedicabs trolling around downtown New York (sound like the Internet Bubble of '97 much?) and it wasn't from Google.

But did you see the most outlandish thing about it? The new (now gone) TOS insisted that your content that you merely link from Facebook gets that perpetuity license. What (um) cojones.

Who in their right mind would post actual photographic "work" on Facebook, anyhow, and who, in their right mind, would object to having a snapshot or two of their cat being stolen by anyone? Lot of worry over nothing.

Google does not own Facebook. Microsoft does.

I'm doing a 365, and while my photos have no particular commercial value I stopped loading them because I wanted the right for them to have commercial value, if I so decided.

Going back to the old TOS I'm more comfortable - Facebook isn't going to use my photo in an ad, now, or license it to a third party - they could, but would run the risk of me revoking their license at a moment's notice. My issue with the license was the permanent, irrevocable parts. That's gone.

If facebook hired me to write the legalese, after setting up the site, I might well produce something like this. As Eamon points out, the way the site works is that they show all your friends etc little snippets about you, and it probably wasn't programmed with being careful about removing these in mind. Hence the broad terms to cover against some angry ex-user, cross that thumbnails of his naked party pictures are still visible to his ex.

That said, it's problematic to have them do this, because when times get tough or the site gets sold, they might discover that they own rights to a lot of commercial work, and come to collect money. So it's a good thing if Consumerist points this out. If enough people are angry we can hope that they'll spend the time to write a more focused release, covering the way they actually use your pictures but not covering too much else.

I guess I have enough faith in humanity, and little enough taste for conspiracy theories, to believe that the initial motivation was just to make sure they were covered, at minimum effort, rather than to steal your stuff.

On my own blog, I've posted around a couple hundred pictures by now, all carefully processed and sharpened, nothing larger than 500 pixels across and without watermarks. (I don't believe in watermarks - I think they're ugly-making and insulting to the viewer.)

Am I being naive? I know how easy it is to lift a picture but is this a widespread practice for commercial purposes? Can I protect my content without resorting to watermarks?


For those who need a quick, 1 minute video summary of the Facebook TOS issue, have a look at this educational video from the IT Crowd:
http://www.youtube.com/watch?v=6rNgCnY1lPg

Er, Eamon, when did Google buy Facebook?

The only thing I know about it is the April spoof in InfoWorld and the fact that they were competing against Microsoft for a percentage buy. Which ended with Microsoft cashing out $240M for 1.6% of Facebook and a deal to serve their international ads...

Google is not exactly my idea of artist friendly, either.

Go to Google Images - you will likely find your own images there - indexed according to the titles and key words you have used on your own hosting site. Google just lifts them without permission or regard for most copyright or usage messages you have associated with each image on your own hosting site.

So, they are using YOUR images, without permission, for commercial purposes. Nice.

Before uploading to facebook, I resize them to 400 pixels long, and put my logo and URL on them.

re: Facebook ownership

My mistake; Google does not own Facebook. I think I conflated YouTube with an anecdote I heard about the Facebook founders palling around with Google people in the Valley.

I wonder if I'm more easily confused as the years advance? Oh well, off to the dry cleaner's to pick up dinner.

@Evan: As erlik points out, neither Google nor Microsoft own Facebook.

@Gingerbaker: I don't have much legal knowledge on this subject, but just to clarify the situation: Google Images is a search engine, not a hosting site. They store small thumbnails of your images to display on the results page, but the actual large images they display come directly from _your_ site (Google doesn't make a copy). They're pretty clear about this, and display the original page alongside (again, _without_ making a copy). This is called a deep link or an inline link, depending on exactly how the linking is done.

This appears to be fair use, though there's been some legal contention on the issue. There's a pretty good writeup on Wikipedia: http://en.wikipedia.org/wiki/Copyright_aspects_of_hyperlinking_and_framing>http://en.wikipedia.org/wiki/Copyright_aspects_of_hyperlinking_and_framing

Further, it's extremely easy to have Google (and other engines) _not_ index your page (I don't know if your particular hosting service will allow this, but that's not the search engine's fault). It involves creating a file called robots.txt on your webserver. Private folders on most hosting sites are almost certainly not crawled either (assuming the host is not colluding with Google, the crawler would need your login/password to access these images).

Incidentally, wouldn't a lot of artists _want_ their images to be indexed by a search engine, since it drives traffic to their site?

Facebook was already a lousy place for photographers -- they strip ALL metadata on upload, including IPTC Creator and Copyright information, as well as embedded color profiles.

For those reasons I'd already decided not to post any photos there, instead posting to Flickr and including the Flickr feed in my Facebook profile.

I've written a couple of posts on this already, but I feel that one of the points I made there is worth repeating.

Throughout this debacle Zuckerberg and Schmidt have endeavored to quench the fires by asserting several times that users still "own their information" regardless of the TOS.

The problem with the way that they're framing the issue is (a) this is only partly an issue of personal data and privacy concerns (the "I don't want to see my kid in an ad for Sony" complaint) and (b) the issue is not over ownership but over use.

I've never thought that their actions threatened my actual copyright - I never thought that someday I'd have to ask FB permission to use my own images or writings if I posted them there - and I'm not terribly worried about the release of my personal data (because I don't put sensitive information there).

I am concerned about whether their license to use or display my content is so broad as to threaten my own ability to manage my content outside of Facebook. I'm also concerned about my ability to cancel that license in the instance that I want to grant an exclusive license to someone else, and I'm concerned about the possibility that they might make commercial use of my materials without compensating me, especially if it affects the marketing strategies I may have planned with regards to pricing my licenses, etc.

The fact that they keep framing this as about "ownership" and "privacy" and not about licensing or intellectual property worries me. It is unclear whether they're trying to reassure people by offering to fix a problem that never really existed while ignoring the actual problem (which is disingenous at best, actively deceptive at worst) or whether they themselves don't really grasp the distinction between granting a license and transferring a copyright.

Regardless of which explanation is correct, I don't trust them to craft a TOS that respects that distinction and the interests of those who choose to upload creative content to the site.

At least one comment suggests that when your work hits the Web you can't control it, which is true. But that's a much different scenario than assigning another entity licensing rights to your work, which is spelled out in both the old and new TOS. To date, the difference between the two is whether you can recover your license rights by unsubscribing from Facebook. And this is not the first time Facebook has had to explain a position which seems at odds with user control of their data. As such, I for one, will be leaving Facebook. Not that they care, I hardly use it and have less than 30 friends. But it will make me feel better ;-).

Goodbye Facebook.......Hello Twitter!

First off, I use facebook and I post photos there. I would be extremely bothered if my photos were licensed out commercially (something I could make money on) but not particularly upset if some person used it for non-commercial purposes. I find the TOS overly broad in facebook's favor, in both versions, and prefer they be reworded so protecting a user's control of content. So, "yay!" consumer protection advocates, I'm all for them doing what they do.

However, that being said, I'm not getting worked up over it or stopping the photo sharing from my account. Facebook is a multi-billion dollar enterprise ($240 million for 1.6% and advert deal) entirely based on user community participation. Now, imagine they exercised their language to its fullest extent because the next Cartier-Bresson or Ansel Adams posted a brilliant set of pictures and they felt it was worth stealing. The case goes into arbitration and the photographer loses because the language was clearly in facebook's favor. Can you imagine the publicity surrounding a photographer losing licensing fees and the court case? Then think of the backlash, and how no one with valuable content (music, writing, photos) would ever post again because there would be an actual case of something being taken from the creator. Look at the publicity and backlash from just the language being modified, even though there isn't a single documented use of facebook using content in such a shameless way, and you can begin to see what would happen if they actually stole content. The few million facebook could make from a brilliant photo set (and we know that's overestimating) would be compared to the hundreds of millions in lost revenue from their main operation. Even if facebook put up a subsidiary stock agency with every photo ever posted to it on the block, the losses from losing its active user community would dwarf the photo agency profits. If coke licenses a photo and the photographer claims it's stolen, they too get horrible publicity. There is no way facebook would do it, coke would buy it, or any market for facebook-licensed photos would really exist.

Legally, photographers should dislike that language and try to get it changed, possibly by boycott. Economically, however, absolutely no one should lose sleep over this issue, even if your photos are very very good and marketable. On the other hand, a facebook user taking your photo (when not legally licensed to do so by you or facebook) for a small-market use like an indie album cover, is a very real possibility.

Bad as they are, those terms of service aren't the worst such legal language I've seen. That was from a software company which presented me with a new employment contract stating I was assigning them the rights to any intellectual property I may acquire, even beyond my employment with that company and through the term of my natural life.

As you might imagine, I wouldn't sign any such thing (and they didn't insist, in the end).

I was advised that such a contract is probably unenforceable, at least not in Australia. No, the purpose of this was to create a point on which to litigate at as much length as possible, in the hope that you have insufficient funds to continue: whether enforcing a claim against them or should they ever try to claim against you.

Having been involved in unrelated litigation intended to do exactly that (take advantage of the disparity of funds between a substantial company and an individual) I can assure you that its no fun. And while (again, perhaps only in Australia) this may be regarded as "abuse of process", the folks who investigate such claims are the Law Society - who are also the "lawyers union" and appear quite uninterested in investigating such matters.

I guess my point in this is to note that despite any claimed "good intentions" and whether the terms of a contract seem enforceable or not, it is never a good idea to sign or otherwise accede to a contract that creates points to litigate for someone with a lot, lot more money than you.

Most of the traffic on my site comes from Google indexing images. I'm happy about it. On another site I have I put a robots.txt and that worked. As long as I have some control I don't have a problem with the indexing. I have truly found the Google image index very useful many times for inspiration. I don't mean as a religious experience but rather for seeing how others may have drawn or shot a subject or idea and getting ideas from that.

I have no objection to Google image search indexing my site and the more than 1000 photos on it. People who buy photos use Google to find them and I have sold thousands of dollars worth of photos to people who found my work on google.

"@Gingerbaker: I don't have much legal knowledge on this subject, but just to clarify the situation: Google Images is a search engine, not a hosting site. They store small thumbnails of your images to display on the results page, but the actual large images they display come directly from _your_ site (Google doesn't make a copy). They're pretty clear about this, and display the original page alongside (again, _without_ making a copy). This is called a deep link or an inline link, depending on exactly how the linking is done.

This appears to be fair use, though there's been some legal contention on the issue. There's a pretty good writeup on Wikipedia: http://en.wikipedia.org/wiki/Copyright_aspects_of_hyperlinking_and_framing"

My objection is two-fold:

1) Google itself is using my images against my express wishes for their own profit. Call it a search engine - whatever - it is a service they use to generate profit for themselves, not me.

2) If one uses Google Images, and clicks on the "See full-sized image", you get a clean page with the full-sized image and nothing else - including any headers or footers you have included with your image that say things like "You may not use my images for commercial purposes without my express permission".

Now, just what do you think people are using a searchable data base of images for, anyway? They are there to steal them for commercial purposes, are they not? Why does Google provide a clean page with a full-size image?

@Joe Reifer: Why didn't the Friendface "ad" from The I.T. Crowd slap me round the face when all this started to hit the internet?!

"We own everything you put on Friendface - it says so in the Terms and Agreements - but don't worry about that... just think about love and companionship and everything's fine!". Fantastic...

Hi, Ginger. Why do you have full-sized images up there anyway?

I just did a search on some photos of mine (with pretty much singular search terms) and nothing came up. Maybe because I'm preventing hotlinking and no image can be used except by my leave or by people saving each image separately. Google doesn't do anything like that.

I don't have a comment on TOS agreements in general or the Facebook TOS in particular.

I do find it amusing that anyone would suggest that an up and coming photographer should stay off the web. It is the pervasive commercial image outlet of our times. Just as television and magazines once were. Are there problems with ownership right? Sure, it comes with the territory. I'm they will be sorted in due course.

I'm tempted to say that people who say photographers should their work off the web are living on another planet. I think it is closer to the truth to say that they are living in another time.

"I do find it amusing that anyone would suggest that an up and coming photographer should stay off the web."

Ken,
Since when is staying off Facebook equivalent to staying off the web?!?

Mike

It is very clear to me there is no privacy on the web. I put things on the web for people to see them. I want the exposure but I don't want content used without my permission. This is starting to be like walking a tight rope without a net. We as creators of intellectual property are clearly sailing in dangers, hazard strewn waters without proper charts.

I am shocked how often I hear photographers say they hope someone infringes upon their copyright so they can sue and make lots of money. I am equally amazed how many of them have never registered their copyright and are completely ignorant about the necessary steps to protect their property. There is so much misinformation floating around about intellectual property rights. I know a commercial photographer that had a very clear case of infringement and had followed all of the necessary steps to protect his copyright. When the dust cleared two plus years after retaining quality legal representation he stated that the settlement awarded was hardly worth the trauma of the legal action. Can you imagine some naive Facebook user getting in a bad legal situation with a corporation like Facebook.

I am a Facebook user and have had to really scrutinize my content uploads because of the issues not so much of privacy but use and potential abuse of photographic content. What happens when someone in a photograph posted by a Facebook user sees their likeness being used by Facebook for commercial purposes and decides to sue the company and the photographer that uploaded the image? Does Facebook corporation then sue the user for uploading the photograph without having the proper releases? There are just too many unanswered questions out there for my comfort. I have decided the only photographs I will upload to Facebook will be composites and contact sheets in low res and only contain people I have releases from. Am i Just being paranoid?

I have really enjoyed using Facebook and have established some very rewarding relationships with photographers from all over the globe. It's been a great way to keep up with each other and our projects. I also have extended family all over the globe and we are in daily contact via the site but I am becoming increasingly suspicious of the future. http://www.infowars.com/truth-about-facebook/

More than a year ago I linked my blog and photoblog RSS feeds, as well as my Flickr stream, into Facebook. Then I took a look at the TOS and immediately de-linked them.

I still use Facebook a bit, but I don't let my "materials" flow into it. Even if it is highly unlikely that there would ever be a dispute, it's my boycott against unreasonable terms of service. It's the same reason why I won't enter photo contests in which the terms say that ALL ENTRIES (winner or not) become the property of the contest holder. As if!

Gingerbaker: as someone else pointed out, Google is only indexing your images, not "using" them.

BTW, it's easy enough to prevent Google from indexing your web site. Just put a text file in your root directory called robots.txt. The contents of the folder should be:

User-agent: *
Disallow: /

That will keep all indexing robots out of your site (at least the ones that adhere to the robots exclusion standard: http://en.wikipedia.org/wiki/Robots.txt)

FWIW, I don't make any effort at all to market my images, but I recently sold two of them to advertising agencies based on images they found via Google image search. They had to arrange with me to get the high resolution versions, which resulted in payment to me for one-time usage.

Don't knock the Google image search!

Didn't Flickr have a similar flap recently?

And what do you expect? Corporate scum is corporate scum: it always fouls the the water! Further, what do think this is, free or something?

@Gingerbaker: As far as I see it, there are two conflated issues here:

1. Google is displaying your images (as thumbnails or whatever) for a service that earns them profits when users click on ads (that's how Google makes its money). Interestingly enough, neither Google nor Live Image Search has virtually any ads (I say virtually because apparently Google experimented with it in the past, and you might still see one occasionally) -- though you might claim that Image Search encourages use of Web Search, which does display ads in both cases. Since it's trivial to avoid being indexed by using robots.txt (I just checked that Flickr allows a similar privacy setting), I don't understand your concern. If you omit robots.txt, I can only conclude that you _want_ to be indexed by Google. And as other folks have observed, that can direct folks to your website and thus make _you_ money.

2. Google displays your images without any licensing notices, so people are encouraged to steal them for commercial purposes. Untrue. On the first results page, there's a thumbnail (fair use). On the second page (once you click on this thumbnail), you see a window with two frames: the lower, larger one has your original page with all your licensing notices etc. The top one links directly to the image, yes, but also has a notice that says: "Image may be subject to copyright." If anybody goes beyond this and actually steals your image, then I sincerely doubt the absence of this direct link would have stopped them, and I'm not sure Google is doing something unethical here.

As other commenters have pointed out, what are you doing with full-res images on the web anyway? Anybody who really wants to steal images will steal them if they're available, regardless of whether you put a licensing notice on your page or not. If people can get to your page (and I assume you want people to get to your page!) then it is easy enough to steal them, like it or not. That's why people put only low-res images on websites, and plaster translucent copyright notices across them. The problem is not Image Search, the problem is that digital data is trivial to copy.

I have no connection with Google (/MS/Yahoo...), but I recognize Image Search as a valuable tool for legitimate reasons, which is why I'm a little outspoken in its defense.

Mike said:
Since when is staying off Facebook equivalent to staying off the web?!?
------------------------

I believe one of the links says that explicitly. Something like stay of Facebook and stay off the web entirely.

I don't think there is any question that the general tone of discussions concerning the security of images on the web in this blog is negative. I'm exaggerating when I say that some regular posters see the web as just a den of thieves, but not by much.

There are problems with images being stolen on the web. No doubt about it. I have faith that clever people will learn how to improve the situation. In the meantime the web is where the action is for all types of visual media.

I think there is a large generational component to discussions about web piracy. I hear it from people my age (late 50s) all the time. Younger folks tend to have a somewhat different attitude. Maybe they are all thieves. They are also the people who are trying to make a mark in visual media using the web and other types of new media.

"I am equally amazed how many of them have never registered their copyright[...]"

Copyright is not trademark. It doesn't have to be registered, that is, be a Marca Registrada. And it doesn't have to be enforced constantly like trademark.

Yes, it appears that registering your copyright will make possible litigation easier and damages higher. (I don't know how much of this is a US-only thing, as US copyright Office says "Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.": http://www.copyright.gov/circs/circ1.html#cr *)

You're the copyright owner from the moment you fixed your idea in a concrete form. And yes, work-for-hire and blah-blah-blah, ekcetra and so forth.

But again, you're the copyright owner of your work from the moment you created it. You don't even have to publish it.

* So I, not being in the US, don't have to register my photos in the US.

Erlik,
I understand that copyright doesn't have to be registered to exist. My point was that there is much confusion in todays world about the value of your copyright and the protection it affords the owners of intellectual property. In the U.S. at least, the difference between owning copyright and having registered it is like the difference between a watchdog without teeth and claws and a ferocious pit bull. People creating and displaying or publishing content considered intellectual property do need to understand the basics of this or they are at the mercy of those that will exploit every opportunity to get something of value for nothing.


How do the laws from different countries get along? I live in Argentina, and copyright and trademark laws are quite different here than in the US.
I know that if I post my work on Facebook I’m playing by their rules (after all, I agreed with the TOS when I signed up), but what about “the web”?
If I upload photographs to my web site (in a server stablished in my country and therefore aplying the laws of my country), what happens when they get indexed, upload, download and so on on servers who follow a different law? Like Gingerbaker’s post, I mean when you have aproved no TOS.

Gaspar H.

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