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Friday, 02 April 2010

Comments

I don't know what you mean by 'proposing' this change. This is currently part of Facebook's terms (Statement of Rights and Responsibilities) and words to this effect have always been part of the terms of the site. It's a form of standard legal words that you see on dodgy online competitions and media sites that are intended to allow all photos submitted to be used and on-sold for stock/advertising.

It's also the reason I don't upload photos to Facebook.

Of course, the flipside is that photos of recognisable people are not useful to them as stock images because of passing off laws, meaning they would need the permission of the subjects to use them in advertising.

I am sick and tired of corporations like Facebook stealing my work. I do not produce my photos for others to lay claim to them. This applies not only to my professional work posted on my fan page, but personal work such as photos of family and friends. I don't post on FB so that FB can sublicense my work and make money from it.

THAT'S THEFT.

I thought those kinds of licensing terms are used by Facebook and similar services just so they can run their service in a sane manner. I think it's supposed to avoid the following situation: I upload a photo to my Facebook account, and then I turn around and sue Facebook for making the photo available to other Facebook users in the normal course of using the service. In order to let other users access photos, they need your permission to do so. At least their attorneys sleep much better at night having this right in the contract you agree to when using Facebook.

I don't think it's a big conspiracy where Facebook is planning to make a fortune selling copies of your precious snapshots for top dollar.

Vlatko, you say you hate the term "content". What about term "Intellectual Property"? There's no such thing in law. There are copyrights, trademarks, patents and trade secrets. Saying "IP" you're not saying which one you are talking about... Worse yet is use of this dubious term in quoted Facebook agreement. Written by lawyers who pretend not to understand what they ask you to sign? Or is it done on purpose?

That license is what allows Facebook to operate at all; without it, they would be unable to display your content to other users on Facebook.

It also appears identical to Facebook's current terms, and very similar (effectively identical) to terms at other sites that display user-created content.

Typepad, for example, is an example quite relevant to TOP: their terms of service, at http://www.typepad.com/legal/terms-of-service.html, has essentially the same license (in section 8).

Sheesh.

My recomendation would be to simply not upload any photos to FB. I upload my pics to Flickr, which explicitly respects my copyright (but also allow me to grant a Creative Commons license, which I have done). Then I'm using an app, which grabs any new photos from my Flickr account and shows them as thumbnails on FB. A click on a thumbnail will send the user to the original om Flickr. That way, FB can only get to my thumbnails, no matter what legal goblevob they present.

I went to a conference last spring that had a number of high-tech forums talking about what would be available in the not-to-distant future, and as a professional content provider, I objected to the insistence by a lot of these technical people that I was on the wrong side of things -- that software and machines would make the money, and that "content wants to be free."

Well, maybe it wants to be, but *I'm* not giving it away. Anyway, these people are marching into this bright free-content future, and I said, as part of one of the panels, "You guys haven't heard from my attorney yet, and I think that the next great wave that hits the future might be a legal wave." That was dismissed -- "The attorneys work for us, not for you." I said, "The attorneys work for whoever will pay them, and the situation is becoming dire enough that we content providers are going to get together and start hiring them." There was some debate on this point, but basically, it was dismissed: they kept coming back to their slogan, "Content wants to be free."

What they have going is an unspoken cooperative agreement with pirates -- the technies provide the platforms, and the pirates steal the content. Without the stolen content, the platforms would be a lot less attractive.

But, with machines like the iPad, I think the worm is turning. Apple, Amazon, Barnes and Noble, etc., are very large targets, and when most of the content is coming out of a few sites, like those, I think we'll see a time when the big sellers and the big content providers will see that they have a mutual interest, and will start locking out the pirates.

The problem that pirates have is, that to be profitable, that have to be public, which means that the content protectors can find them as easily as the content buyers. And programs like Tineye and its offspring will be a lot more effective in helping to enforce copyright and other content-protection devices.

JC

Enough already. We don't want to live in a dystopian science fiction novel.

Oh but we do, whether we wish to or not.

Personally on-line social networking sites
are just another method of obtaining information of, for, and about others.

"That license is what allows Facebook to operate at all; without it, they would be unable to display your content to other users on Facebook."

I've heard this argument, and I honestly don't agree. Facebook can operate without the right to have a transferable RF license for content posted on the site. If their TOS simple stated that FB reserves the right to use posted intellectual property to promote Facebook and display content to the public, it would be sufficient.

Facebook does not need "transferable, sub-licensable, royalty-free, worldwide licenses" of materials posted on its site to remain a viable business.

"the content (I'm starting to hate that word)"

Here's a funny bit: in one of my favorite books by Iain Banks, Espedair Street, the main character reads on a mayonaise jar the word "content" about the mayo. He muses that it's disgusting and disrespectful, and at least nobody has yet had the sheer balls to use that word about art works like text and pictures...

I admit I use the word myself, since I don't have a handy alternative, but I can also see the implication that it makes the work of the writers and artists secondary, even incidental, to the site and the business.

The FB license is written like that because of several issues. Transferable/sub-licensable is for application developers that may not be part of the FB company. Worldwide due to the fact FB have (or will have) replication of the data all over the world, and they want to cover their behind.

I don't know if there is any better way of wording this, but FB has so many privacy issues that this is just the icing on the cake.

Last, the "free content" idea is a myth. Artists need to make money out of their creation to live and make more (hopefully good) content.
The problem is that the genie is out of the bottle. How do you explain to 20y/o that never had to pay for owning music in their life that it's wrong ?

Reading bits of this topic makes me glad that I utterly ignore "social networking" sites.

Tim and Ed, that's what I meant by "nobody reads it". I found the wording in the proposal.

Transferable/sub-licensable is for application developers that may not be part of the FB company.

No, it isn't. When an application wants to install, you are warned that it will have access to all your data, photos and so on. There's also a bit in Facebook TOS where they say that every application comes with its own terms of use.

Sometime during the last year, people's profile photos started appearing in an ad in the sidebar where they show ads, kinda like Google's AdSense. The ad was pulled quite quickly. So I'd say the license does not cover that. OTOH, there is a widget one of Croatian dailies uses that pulls the first names and photos of their Facebook fans and displays them on the paper's site. I don't know what to feel about that one.

In order to let other users access photos, they need your permission to do so.

So why don't they say that? Why transferable, sub-licensable license for something as broad as "use"? As I said above, "store and display". AFAIK, various physical Facebook servers are treated as one entity - Facebook.

I can see where you are coming from, though. I read about a group that sued Facebook for breach of privacy essentially created by letting them use Facebook. That is extremely silly.

I'll continue in next reply.

Ken, I was resisting for a couple of years. But in the end, I find it interesting and even useful for interacting with a large number of people in one place.

The element of interaction is exactly what distinguishes the social sites from one vast RSS feed. You comment, somebody else comments and you have a discussion going. About a wide variety of topics, from serious to quite silly. Where else could I learn about stuff going on in photography, politics, art and architecture, personal stuff from my friends and so many other things?

John, that is a different discussion. The meme "content wants to be free" is apparently built upon the old "information wants to be free" and is wrong. Information and "content" are not the same thing.

Being at least a quarter techie myself, I can understand the attitude about new platforms. But I think you're wrong about them being in agreement with pirates. Pirates and criminals tend to operate where there is a lot of people. Naturally. You had Spanish Prisoner, pyramidal scams, identity theft far before there was an Internet. Computers and the Internet just make it possible to do it easier. You had bootleg LPs, cassettes and CDs before the Internet. It's just easier to send files over the Internet.

The problem of paying for content and intellectual property in the age of the Internet is yet another matter. On one hand, there's what Erez is saying. The milk is spilled. (Although there are surveys showing that people who download illegal MP3s are more likely to buy physical CDs than those who don't download anything.)

OTOH, the problem of widespread illegal downloading is exacerbated by insistence on not recognising the Internet as a possibility. (I'm looking at Holywood and RIAA.) Instead of saying, "People want the ease of seeing films and listening to music in their homes, how can we make it possible?", they refuse to see that possibility and treat everybody as a criminal. What's worse, MPAA blathers about the losses they suffer from piracy when their own data shows huge profits which rise almost each year.

Murdoch has been threatening to start charging for his papers and that he will pull them out of Google searches for some time now. The latest news, from this morning, is that the London Times is "set to" start charging in June. We'll see.

While I can admire the technology behind iPad or Kindle, I don't think that giving your work to one company that controls both the distribution hardware and software is a good choice. Will it be good for you, the author? What will you be made to sign and accept? It kinda works with music on iTunes, but...

On the book front, Neil Gaiman put his Graveyard Book as a free download. It still became a dead-tree bestseller. Cory Doctorow put almost all of his works up as free downloads. They still sold quite well. Maybe we are talking about 1000 true fans, maybe we are not. It worked for them.

As I said, a different discussion and I've been going on for too long. :)

I have absolutely no opinion on Facebook and photography, but Vlatko, I do have to say that I like that image here a lot.

What's this: "you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or *in connection with* Facebook"

"in connection with"?

They get rights not only to what you post ON Facebook but anything you post "in connection with" Facebook???

A lot of people who have been worried about Facebook's previous copyright-grab attempts have avoided putting photos on Facebook and just posted links to their photos on Flickr, Smugmug or their own web site. Now it seems Facebook is after these as well.

I automatically assume that anything uploaded to Facebook (or the internet for that matter) gets filched by someone else. Usually innocently by friends and family right-clicking and saving, then uploading it to their albums. Nothing reinforces your lack of copyright control than an inability to delete that picture of yourself drunk at that work party because Bob from Accounts has put it on his profile photo album as well.

This just allows Facebook to do what it is designed to do. Serve up all your content to all the people you want it served up to.

Given how badly Facebook mashes images I would not worry to much about people or Facebook stealing photos. I occasionally link to my blog there but rarely do I directly upload pics to it that are not anything more than a snapshot.

What Facebook is telling you is that...if you post that photo of you and your girlfriend covered in whip cream and chocolate shavings at that frat party and girlfriend's aunt Sarah sees it, and it goes viral beyond belief, TOO BAD.

Do people really think that Facebook is selling their photos though they were a stock agency?

Nothing here to fear.

I wonder if the reason for it is to prevent lawsuits against Facebook because someone has someone else's image on their page. When you live in the land of the lawsuit a corporation has to protect themselves from any possible liability. Can you not see some individual figuring their ticket in life is to sue Facebook because there is an image on the website that they claim is theirs? And some judge that just spilt their coffee will agree.

Although tangential to the FB TOS, I'm surprised no one has mentioned the massive assualt Google is making on content providers.

Em, what's Facebook? Is it something I need to live and pursue my activities?

Ralph, thanks. That's one of my snapshots. :)

It's not the matter of compromising situations, although it would have to be something criminal or really disgusting to compromise me. :)

In principle, I don't have anything against people who take a photo and put it as their wallpaper, show it on their website or something like that. Although, strictly speaking, it is against copyright and I would like them to ask me. But if they are not obnoxious, it's okay. (There was this musician guy who took a 3D image of mine and used it as the background for the page where he was talking about how people are wrong to steal music. Hah!) The occasional mental case who claims they were the author is an aberration, not a rule.

Somehow I don't think corporations sit around a coffee table and compare their iPhone wallpapers or put photos on their sites to inform their friends they like the photo or that it means something to them.

I don't trust corporations. The only thing they look after is their profit margin.

Consequently, I can think of only one reason they would want to use photos, writings, videos - they want to make money from it.

I can accept it if they want to do that where I can see it. Like what happens on Facebook itself: people put up stuff, Facebook puts up ads that will be seen by other people who come to see the stuff, they collect anonymous usage data... that's all okay. I may be quite radical in some respects, but I don't think things happen in vacuum, without money.

It's that transferable, sub-licensable thingy that got me flustered. The first thing that comes to my mind is the old journalist question: Where. Is. The. Money? Why would they need to transfer the license and to whom would they sub-license the works? If they cannot profit from the works, why would they try the copyright grab last year?

Apropos mashed photos, sometimes it doesn't matter. There is this girl, photographer, here in Zagreb. One day she saw a photograph of hers up on a billboard for Lee jeans. Her photo on a billboard in the middle of Zagreb, and she had no idea how it ended there.

The way I was told, she put up a small-resolution version on her site, somebody grabbed it, uprezzed it and sent for the Lee competition as their own photo. I've also heard Lee compensated her after she complained, but I'd have to ask her what really happened.


Guys,

Being a techie first and a photographer second (unfortunately ;-)) I just wanted to clear up some potential misunderstanding here.

When the techies talk about "the content wants to be free" usually means that it wants to be easily/freely distributed, not that it should not cost the consumer/user.

Yes there seems to be a whole generation of teenagers who expect 'content' to not cost them anything. But, there also seems to be signs that most people appreciate quality costs and will pay for it.

The real trouble is, technically it is very difficult to manage the 'content' owners rights in such a highly connected world. In our capitalist way of doing technology we are not good enough at collaborating sufficiently to build secure distribution mechanisms that are flexible enough. Everyone wants to win and own the whole thing.

If we manage to control the distribution of 'content' we often end in a situation where the end-consumer gets screwed.

Hypothetical example ... buy music for an iPod, the iPod breaks a few years later, Apple is out of business, you have/want to buy a Sony, but non of your music transfers over. Worse Amazon might delete an eBook you thought you owned.

Building a secure channel from the photographer to the end viewer across different media, devices and networks is really tough. Even if we managed it the chances are that it would be fairly unreliable and would put off the end-consumer. So the technical conclusion is usually to remove the security, make the content free of its chains. One of the biggest reasons the internet is so successful is that it is based on simple protocols and standards.

As for Facebook, it is a social sharing website. Personally I put up very few photos, and their only value is for sharing with friends.

I can't help feeling that the best way to handle this is education. Yes it may sound lame but I was always surprised, even in the days of film and pre-internet people did not understand copyright or didn't care.

We are living in the middle of a revolution and it will be very interesting to see how this all works out. I am hoping for all photographers sakes that the situation will improve, partly so I can be less of a techie.

Dave.

I thought I read this before. Is this the Matrix reload?

"Is this the Matrix reload?"

Dennis,
Sort of, I guess! Last time we reported on it was the incident that Vlatko talks about in his second paragraph. It's a similar issue this time but a separate issue.

Mike

I wonder how many people that are complaining about this have pirated music/software on their computer/mp3 player? Just something to think about.

For comparison, below are sections of three TOS agreements.

Facebook (http://www.facebook.com/terms.php?ref=pf):
"For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

Typepad (http://www.typepad.com/legal/terms-of-service.html):
"Six Apart does not claim ownership over the content you post on the TypePad Service. After posting your content, you continue to retain your ownership of your content and you continue to have the right to use and license your content in any way you choose. But by using the TypePad Service or Six Apart's Web properties through which the TypePad Service is available, you are granting Six Apart a nonexclusive, worldwide, royalty-free, sublicenseable and transferable right and license to use, reproduce, create derivative works of, distribute, publicly perform and publicly display your content, subject to any restrictions on such distribution which you may implement through any content distribution controls provided to you by Six Apart as part of the TypePad Service. This license ends when you delete your content or your account (except to the extent that your content has been shared with others or syndicated to third parties and they have not deleted it). You may always decline to submit content to Six Apart, but please be aware that your decision may prevent you from being able to use all or portions of the TypePad Service."

Flickr (http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html):
"Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:

a. With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

b. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

c. With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed."

I wonder how many people that are complaining about this DO NOT have pirated music/software on their computer/mp3 player? Count me in. I still think there are lots of honest people around.

I have very little pirated music. With 11,000+ cuts on my hard drive I'm sure I have a few, but not many. I can only think of one cut I deliberately stole, an old jazz tune I couldn't buy. It was part of a soundtrack to an online video and I even bought special software to use to snitch it. The software cost $10, so I think that demonstrates that I would have paid at least $10 for the cut if it had been possible to purchase it. The musicians, in that case, are long gone.

Some songs or cuts I didn't pay for came from mixed CDs made for me by my friends, which I don't count as being "pirated." I feel it's my right to use the music I buy for what I want to use it for, and IMO the same goes for them.

Mike

Dave beat me to it. FWIW, the slogan "information wants to be free" goes back to the free software movement of the 80's (at least). But that's "free as in speech", as in liberty, as in accessibility. Even then, the idea was often confused with the idea of not having to pay for a product or attribute another's work or ideas.

Ah, Facebook. *shakes head*

I think a large part of the problem with Facebook is that the founders still have in their heads a vision of what the site once was, and that was a site where people who somewhat knew each other casually passed information around within a closed group.

So their TOS makes some vague sense when we're talking about things like your profile pictures showing up in a list of "Fans" for a company with a Facebook page, or your cute cat video being shared on the Walls of your friends. Those are the sorts of things where you can regulate privacy fairly easily - either by setting permissions or (as some of my friends do) using profile pictures that aren't of themselves - and they are also things where the use of those images is usually fairly trivial.

Where Facebook gets screwed (and screws users in the process) is when it tries to apply those standards to content that has marketable value. No one's going to pay for a tiny thumbnail of a person's head (especially one without a model release) so if Facebook uses my profile picture it may bother me on a personal privacy level, but it has no material effect on my livelihood.

However, if they try to do the same with an image I made, and made specifically for commercial use and licensing, then there's a problem. Then they are denying me the chance to sell my work to interested customers, for the simple reason that they're already offering it to those customers under a ridiculously broad license that cuts me, the producer, out of the equation. Moreover, privacy settings are not an appropriate safeguard, since one of the points of putting commercial work on a public site is for people to see it; if you're going to use privacy settings so you don't give Facebook "permission" to sell it far and wide, then you might as well not upload it at all.

If Facebook cared about intellectual property, rather than privacy - which are NOT the same thing, however much FB likes to lump them together - it would offer watermarking and the ability to set up albums where users could control not only access but also licensing - whether that be free use, Creative Commons, or full copyright protections.

Instead, it tries to apply "privacy" across the board as a solution, which works fine if the only content you're uploading is personal stuff like drunken shenanigans and baby pictures. It doesn't meet the needs of professional users... and sometimes I wonder if that's deliberate. The existence of various professional pages came from pressure from outside to have them and a desire to avoid confusing them with personal pages; it wasn't something that FB came up with on its own. As I said, I think the founders still frequently assume that everyone uses FB the way they did, when it first launched.

Facebook certainly needs something close to that license to perform the functions we expect of them -- copying our content onto computers of viewers throughout the world. The sub-license parts are interesting, but I don't know how the company is legally structured (might there be legally separate pieces involved in running the basic site?), or what they contemplate in the future. I don't know how it relates to third-party "apps". It may be the minimum necessary.

While I've practiced some, I'm not a lawyer, not formally trained in interpreting legal language. It's surprisingly different from interpreting real language, and you need to understand the important case law in each area to know what terms really mean. The FB terms may be much better or worse than I think.

In any case, the part that says their right ends when you delete the content thoroughly destroys any possibility that they could sell it commercially; nobody would buy on those terms. (Even with the constraint on sharing, that's too uncertain to be viable commercially.)

I spend a lot of time on sites that, by one standard, depend largely on un-paid content, including TOP (I read most of the comments here, so the majority of what I read here by volume at least is unpaid content). I don't spend much of any time on sites that have a lot of stolen content, though; the one possible exception is YouTube, and there I mostly follow links sent me by others, rather than deliberately going to YouTube to look for things. I'm sure there's a huge amount of stolen content on YouTube, but a lot of the stuff I watch there was posted by the rights-holder and hence is clearly legal.

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