By Rob Pegoraro
Thursday, February 19, 2009
For the past week or so, a dense clot of legalese has been one of the most talked-about texts on the Internet. This document lacks a plot or a setting, but it's still been a compelling -- sometimes enraging -- read for users of the Web's largest social network, Facebook.
The Palo Alto, Calif., company revised its terms of service, which govern how more than 175 million people use the site, in early February. The changes didn't immediately seem like big news; I don't remember seeing a note about them on the site, much less reading them.
Other Facebook users, however, quickly saw things they hated in the new deal. In particular, it no longer addressed what Facebook could do with words, pictures and other content posted to the site by people who later closed their accounts.
The remaining text, in turn, granted Facebook "an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license" to "use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute" things you post on Facebook, subject only to your privacy settings.
The Consumerist blog offered a pithy, but inaccurate, summary of the terms: "We Can Do Anything We Want With Your Content. Forever."
People furiously speculated that Facebook was reserving the right to resell anything they'd ever posted on the site (something its standard privacy settings would have blocked). Some vowed to cancel their Facebook accounts. Tens of thousands employed one of the site's most popular features to voice their dissent; they set up a Facebook group to protest its changes.
Facebook founder Mark Zuckerberg tried to quiet the unrest with a post on the company's blog portraying the changes as the equivalent of a minor bookkeeping adjustment. "In reality, we wouldn't share your information in a way you wouldn't want," he assured.
Users were not assured, nor should they have been. Contracts trump "we're nice people" statements.
(Before I get any further, two disclaimers: Post Co. Chairman Donald E. Graham joined Facebook's board of directors in December, and Facebook's chief privacy officer, Chris Kelly, is a friend from college.)
After a week or so of this public relations meltdown, Facebook gave in, reinstated the old terms and vowed to consult with its users as it rewrites what it now wants to call the "Facebook Bill of Rights and Responsibilities."
Seen one way, this mess should not have surprised anybody at Facebook. Both its old and new terms of service look like traditional exercises in legalistic overreach. They're written by lawyers for other lawyers, in the hope that their lengthy recitation of claims leaves no room for a lawsuit.
But what someone versed in legal theory might see as defensive contract writing often resembles a power grab to everyday users -- the very people asked to accept these rules. And the cost of the resulting bad PR can easily outweigh the costs of fending off frivolous lawsuits. (Facebook has received its share of those and will probably continue to do so.)
Seen another way, though, why would anybody pay more attention to Facebook's terms of service than to the other contracts we casually accept? Who reads the roughly 17,500-word "terms and conditions" contract governing Apple's iTunes Store before buying a song? Who digests Microsoft's nearly 5,500-word license for Windows Vista before booting up a new PC?
For that matter, how many home buyers read in full the terms of their mortgages before signing stacks of settlement documents?
A company might be understood, if not forgiven, for thinking that people have gotten out of the habit of reading contracts.
Not for the first time, Facebook has learned otherwise. The company, however, can scrape some good out of this debacle by setting a better example.
But their input shouldn't be limited to providing ideas that Facebook can grind into the usual legalistic sludge. The company should post a draft of its next terms for members to work over.
The company might find that, collectively, its users can help it write a clearer, simpler contract, just as Wikipedia's collective editors have been able to generate some of the Web's most frequently cited documents.
There's no reason Facebook should be the only place for this type of experiment in collective editing. Other companies should think about repeating the exercise. And why not the government, too? When the feds are issuing orders to an increasingly large chunk of the economy, lawmaking is too important to be left to the lawyers.