Facebook Responds to Concerns over New Facebook TOS

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Facebook has responded to the concern engendered by the new Facebook Terms of Service with a post by none other than Facebook founder Mark Zuckerberg himself. In his comments, Zuckerberg tries to allay the fears of Facebook users by saying that even though the new Facebook TOS says that Facebook can use all user-generated content however they want, and forever, they wouldn’t really do so. Unfortunately, that doesn’t cut it.

In his post, Zuckerberg says:

…Our philosophy is that people own their information and control who they share it with. When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this license, we couldn’t help people share that information.

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.

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In reality, we wouldn’t share your information in a way you wouldn’t want. …

That’s nice, and exactly what Facebook users probably want to hear.

But the reality is that regardless of what Zuckerberg says in a Facebook post, the Facebook TOS is what you are agreeing to, and that says that Facebook can use your stuff forever, however they want. If a user were to bring a lawsuit against Facebook for, say, using their photo in a Facebook television or print ad, Facebook would likely win based on the language in their TOS, despite Zuckerberg’s reassurances to the contrary. (We hasten to add that we have no doubt that Mark Zuckerberg means what he says, and that he is an honorable person – but the TOS is the contractual agreement between Facebook and their users – what someone unilaterally says, without it forming a contract with the other parties, is not legally binding).

Zuckerberg also says that “Over time we will continue to clarify our positions and make the terms simpler,” and we look forward to that.

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We have even offered to assist Facebook in this effort – I have personally written to Mark the following, and hope they may take us up on the offer:

“Hello, Mark!

This is all well and good, and thank you for clarifying your position. However, as your TOS currently reads, you *do* own all rights to any user-generated content, in perpetuity. More concerning is the language which allows you to not only have a free license to use the material *forever*, but which also allows you to create derivative works, and to profit from those works with no recourse for the user.

As such, we are advising people to not post *anything* to Facebook that they are not willing to *give* you, with no strings attached, to use however you like.

If you would like some assistance in rewording your TOS to make it less onerous, please don’t hesitate to ask – I’d be happy to help (at no charge).

Kind regards,


Anne P. Mitchell, Esq
Institute for Social Internet Public Policy
Member, Cal. Bar Cyberspace Law Committee
Professor of Law, Lincoln Law School of SJ”

You can read Mark Zuckerberg’s full comments here.

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One thought on “Facebook Responds to Concerns over New Facebook TOS

  1. that’s crazy. I would pullback from using Facebook, it certainly takes the fun out of it. Further what if someone posts something about ‘you,’ a photo you don’t want up, who owns it? And who would you Sue?

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