Facebook Imbroglio – That Was Fast

[Updated Feb. 22:  With the benefit of more information about this affair, I’m advised that my speculation about Facebook’s interest in changing its ToS to enable service delivery may be not only incorrect but positively upside down.  The old ToS makes clear that Facebook needs rights in user data in order to enable service delivery; the revised ToS – now rescinded – actually obscured this point, rather than clarifying it.  I don’t know the inside story here, and because Facebook backed off so quickly, the full story may never see the light of day.  So, on this point, I adopt Emily Litella‘s advice:   Never mind.]

Before you could say “Facebook is . . . doing an about face,” Facebook did an about face on changes to its Terms of Service.

Bill McGeveran at Info/Law has the story and the relevant links, if this mini-maelstrom blew by you too quickly. (In our household, it blew across the screen at CNN yesterday morning and disappeared immediately into the ether.)

The one note that I might add to Bill’s comments is this:

My initial reaction to the news was that the ToS change may have had little to do Facebook planning to appropriate user content and get maverick-y with it against user wishes. Instead, I suspect that the change had something to do with the organization of Facebook’s technology infrastructure. So long as every electronic reproduction of a copyrightable work of authorship is a “reproduction” for purposes of copyright law, then every content serving and storage deal with a technology partner needs to account for releases and licenses of the content served and stored. It’s possible that the ToS change was Facebook’s way of indemnifying some unnamed third party technology companies that work with Facebook to keep the network running smoothly.

I don’t know whether that’s actually the case, and even if it is the case, it doesn’t excuse the bumbling way in which the news emerged and was (mis)handled by the company.

But that explanation, if true, highlights the mismatches (i) between user expectations in social networks; (ii) between default copyright norms and default privacy norms; and (iii) between copyright’s role in promoting innovation and creativity and its role in structuring commercial transactions and firms.

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