When Facebook quietly tried to claim ownership in any content that users put on the site, it incited a revolt. But here’s the interesting thing: the commoners won. Rather than risk the wrath of angry Facebook users and jeopardize its cool image, the website capitulated. It was a powerful demonstration of the power of online communities to negotiate their own “social contract” with the corporations that host them.
It all started on February 4, when Facebook changed the legal “terms of service” that users must agree to when they sign up for Facebook. The TOS is that dense legal language that no one really reads but which everyone nominally consents to by clicking the button, “I agree.” Now that Facebook has more than 175 million members (a population that would make it the sixth largest nation in the world), the company apparently felt that it could quietly change the TOS to expand its rights with impunity.
Essentially, the new TOS said that anything that you upload to Facebook becomes the property of Facebook, even if you close your account. So your photos, your writings, your music, your blog (if re-posted to your Facebook page), would belong to Facebook. Facebook could even choose to sub-license your content if it so desired. It presumably thought that it might make money by selling a viral hit or letting advertisers use amateur content or people’s likeness for commercial purposes.
The changes were not trivial. Facebook was claiming “broad, permanent and retroactive rights to users’ personal information,” in the words of the Electronic Privacy Information Center. EPIC also noted that the modifications were made without any meaningful notice to Facebook users.
While Facebook understandably didn’t call attention to the changes in the terms of service, the Consumerist, a blog associated with Consumers Union, did. It pored through the fine print, discovered the “content grab” and publicized it on its site. Soon Julius Harper, a Los Angeles video game producer, joined others in organizing a Facebook group called People Against the New Terms of Service, which quickly attracted 136,000 people. After a New York Times article publicized the controversy, the Facebook rebellion truly exploded.
Noting that the unilateral transfer of rights to Facebook was an unfair and deceptive business practice, EPIC announced it was planning to file a complaint with the Federal Trade Commission. A dozen consumer and privacy organizations planned to join EPIC. Within hours of the planned filing, on February 18, Facebook decided to restore the former terms of service.
What’s surprising is that Facebook thought it could get away with its brazen content grab. Don’t they realize that their business model depends upon respecting the community, and that the community has 175 million eyes? MySpace’s attempted ban on external software widgets once provoked an uproar, and MySpace backed down. Facebook itself once instituted a new feature that many users considered a violation of their privacy.
If the new TOS was a “mistake,” as Facebook later claimed, someone in the legal department or executive suite should be fired for endangering the company’s franchise so casually. More likely, the move was a deliberate and calculated choice. Facebook wanted to enjoy broader legal rights over a massive collection of user-generated content, and thought it could unilaterally achieve this change without attracting attention.
Once the controversy flared out of control, however, Facebook wisely beat a hasty retreat. It invited Facebook users to help formulate a “bill of rights” for users that would cover their “freedom to share and connect,” “fundamental equality” and “ownership and control of information.” The Facebook community will be able to review, comment on and ultimately vote on the “bill of rights” in “a virtual Town Hall” that will last for thirty days.
“This is really a move we’re making because we trust our users,” Facebook founder and Chief Executive Mark Zuckerberg said. “If we have a good, open dialogue, we feel this will strengthen the community and strengthen trust and loyalty.” The company also wrote, “We apologize for the confusion around these issues. We never intended to claim ownership over people’s content even though that’s what it seems like to many people. This was a mistake and we apologize for the confusion.”
It’s healthy for powerful institutions to be insecure. It makes them more responsive. It focuses the corporate mind when it learns that a stupid decision may trigger mass defections of users and serious damage to a company’s brand equity. Facebook is actually a stronger company now. Facebook’s chief asset — its users — will be a more stable population as a result of the open, deliberative process and the forging of governance norms that are openly debated and accepted. Bravo. Given Facebook’s preeminence, I have to believe that this episode will set some powerful new precedents for enlightened online governance.