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About Face

February 18, 2009

UPDATED

Facebook will revise a new terms of service agreement that had raised privacy concerns for users and trademark worries for colleges, the company announced early Wednesday.

After a barrage of complaints, Facebook scrapped a new agreement that had granted the company indefinite rights to material posted by users. The company will restore the language of its prior agreement, which states that Facebook will lose any rights to posted material if users discontinue their accounts.

The agreement, first highlighted by the Consumerist Web site, raised potential concerns for colleges that often use trademarked logos to market themselves on Facebook. Under the agreement, the site had an “irrevocable, perpetual, non-exclusive” license with the right to sublicense or “use, copy, publish, stream, store … and distribute” any content users posted online.

In a newly posted "Facebook Bill of Rights and Responsibilities," the company sought to alleviate any concerns about users' photos or wall posts being commercialized.

"You own your information, Facebook does not," the statement said. "This includes your photos and all other content."

Brad Ward, who aids colleges with Web-based marketing, quickly sounded the alarm for higher ed Monday on his blog, squaredpeg.com.

“How does this affect colleges and universities?” Ward asked. “One thought: could Facebook come out with a line of clothing with university logos because someone has uploaded it? I’m no legal beagle, but it seems like they’re looking for more ways to monetize and the possibilities are endless.”

Greg Lastowka, an associate professor at Rutgers University School of Law who is writing a book about law and online communities, said the possibility of Facebook using its prior agreement to commercialize college logos was remote -- but real. While most college's logos are protected by trademark laws, placing them on Facebook under the former agreement posed risks, he said.

"Facebook has significant incentives, at least at present, not to attempt to commercialize school logos that are posted on its website. So, as a practical matter, I doubt Facebook would currently commercialize posted school logos," Lastowka wrote in an e-mail Tuesday. "But good contract lawyers focus on worst-case scenarios in the future because those are the situations where clients end up in litigation."

"The copyright license granted to Facebook under its [former] terms of service, if those terms [were] enforceable, would seem to give Facebook a perpetual license to use uploaded logos," he added.

Charlie Henn, an Atlanta lawyer who has represented universities in trademark cases, said Tuesday that he was doubtful courts would have sided with Facebook if the company started claiming rights to university logos. That said, there were potential implications for the published works of faculty or other university employees.

“I question whether a court would allow that [agreement] to be extended to a trademark,” Henn said. “I think the bigger concern for universities is going to be with regard to copyrighted material; so if people are blogging or posting papers for comments, you’d hate to see Facebook claim rights to work that was produced by university personnel.”

Facebook Initially Downplayed Agreement

News of the new agreement prompted quick furor, and by Wednesday morning a Facebook group protesting the changes had nearly 83,000 members.

The company's initial response to the protest was clarification, not revision. Maintaining the necessity of the new agreement, the company merely provided a statement that assured “We are not claiming and have never claimed ownership of material that users upload.”

Mark Zuckerberg, Facebook’s founder, sought to clarify matters on his blog Tuesdayas well. While Zuckerberg asked users to "trust" that the company wouldn't misuse information posted on the site, he stopped short of agreeing to make any changes to the new agreement.

“In reality, we wouldn't share your information in a way you wouldn't want,” he wrote. “The trust you place in us as a safe place to share information is the most important part of what makes Facebook work.”

As Zuckerberg explained it, Facebook required the license to “help” users share the content they post online with their Facebook friends. The company still maintains that it needs those rights in order to share the information, but has overtly stated that "we don't claim to own your information" and won't share information once an account is deactivated.

Siva Vaidhyanathan, an associate professor of media studies and law at the University of Virginia, said the new agreement merely pulled the curtain back on the Facebook business model. The company profits by learning more and more about users through their profiles and friends, and the agreement was a logical extension of that model, he said.

“This change fundamentally reveal[ed] the real nature of Facebook,” said Vaidhyanathan, author of the forthcoming book The Googlization of Everything. “Facebook effectively hides its role as consumer information aggregator and profiler, which is really how it’s supposed to make money. It takes all of these expressed preferences that we list, and it puts them into a big database and it starts analyzing and predicting what we might like … in hopes that it can target ads to individuals.”

Hoping to reach out to students, colleges and universities now frequently create official Facebook pages. Doing so has already created some headaches for higher education officials, who were none too pleased to learn that marketers were creating their own “official” pages – complete with university logos – in order to market to students. By getting into the business of marketing themselves on Facebook, college officials may invite further challenges to trademarked material, Vaidhyanathan said.

“If you don’t enforce your exclusive rights to trademark you are in danger of going generic,” he said. “That’s a real danger in trademark. It’s one of things that should make universities think twice about doing official pages.”

“I can’t say it’s definitely going to be a problem,” he added. “But I’m certainly not going to say it’s not going to be a problem.”

 

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