Why Facebook is in perpetual denial

I understand that Facebook lawyer Chris Kelly appeared on television Sunday morning to reassure all 175 million of his parishioners that Facebook doesn't own their intimate details and never will.

The lawyer in me, entirely untrained and without a trace of a Hugo Boss suit, whispered, "Aha. But he never said Facebook didn't want to own your stuff." I let that thought pass because I want to keep Facebook on the heavenly side of my Day of Judgment.

However, the pouring rain, the wind from Hades outside my window, and an undeniably chilling piece by Frank Rich in today's New York Times made me actually read these terms of service about which everyone's arms seem to be raised in dread.

Here is the important sentence: "By posting user content to any part of the site, you automatically grant, and you represent and warrant that you have the right to grant, to the company an irrevocable, perpetual, nonexclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such user content for any purpose, commercial, advertising, or otherwise, on or in connection with the site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such user content, and to grant and authorize sublicenses of the foregoing."

If lawyers had editors, they would never be able to write sentences as long as that. But I am assuming that all of these words are, indeed, the same kind of English words I use in my daily life--except, perhaps, for the word "sublicense."

I know that the main problem with terms of service is that they are written by lawyers and accepted by people who don't read them because they are in a hurry to buy something. But doesn't the mere word "perpetual" (never mind "irrevocable") suggest rather irrevocably that Facebook would like to own your things before and after you're dead--before and after, even, the nuclear holocaust?

This photograph, entitled '17/52-Denial', is irrevocably and perpetually not a representation of Facebook COO Sheryl Sandberg. Any suggestion otherwise will immediately necessitate closure of your account.

(Credit: CC LabGP and SigOther)

Surely there is only one question to be asked here: what was the meeting like in which these perpetual brains decided to draft something that appears, to an average mind, to be a brazen pickpocketing of users' material?

I imagine some Facebook large toupee, perched on the side of a desk, briefing the lawyer:

"We need to make sure we own everything forever."

"OK," the lawyer says.

"Oh, and don't forget that we need to be able to use people's stuff in advertising. Because who knows what advertising might look like in the future? We certainly don't," continues the Facebook executive.

"OK," says the lawyer, not a giggle in his delivery.

"And let's make sure we're covered until the end of the world," says the toupee.

"How about a little beyond that?" suggests the lawyer. "There might be another Big Bang, and we might be merged into another planet."

"You're right," concludes the toupee. "That's why we pay you the big bucks."

"Well, if you remember, you gave me more stock than cash," says the lawyer.

"Yes, but it's perpetual stock," says the toupee, getting up and leaving for lunch.

Unlike some large brands, Facebook does actually listen and respond to its customers. But unlike some large brands, the company's capacity for denial can be almost charmingly breathtaking.

[hawkeyeaz1]

None of it would have stood up in court I am sure. IANAL, however, the fact that they changed the TOS and did not tell anyone, and you cannot realistically check the TOS every 5 minutes for a change, and most sites saying "by using this site you agree". the mere act of viewing the site allegedly means you agree, even if you only view to read the TOS. Much like most software companies enclosing the licensing inside the seal, and breaking the seal allegedly means you agree.

That coupled with the fact they can change the TOS at will (again, w/o any notification), and you are allegedly agreeing to anything and everything. So if you disagree, too late, you agreed when you logged in to check the TOS, and so they own everything.

Yeah, right.

[rapier1]

Actually, these sort of TOS modifications are normal and have been found legal when the initial agreement includes some verbiage that says 'These terms may be modified at any time by the company'. Credit card companies, cable operators, phone companies, and so forth have been using this sort of thing for decades now. In terms of facebook they're pretty much covered - being that you need to explicitly agree to a TOS before you can actually post any content.

In fact, I'd like to point out that CNET has similar terms of service including the 'irrevocable' right to use anything you post here as they see fit. Just click on the Terms of Use link at the bottom of the comment entry box.