Hello!
Facebook announced their new Terms of Service (TOS) Agreement this week. The new terms had the blogosphere in an uproar. Basically, the new Facebook TOS Agreement stated that users gave Facebook a perpetual (forever) license to use any intellectual property (writings, photos, links, etc.) posted on Facebook as the company wished. This license was granted and remained in effect even if you, the user, deleted your account. The old Facebook TOS Agreement stated that the license terminated once the account was deleted. Basically thousands of users protested this new change and Tuesday Marc Zuckerberg, CEO of Facebook, announced that the old Facebook TOS Agreement would stand.
In this article, I will examine what is a TOS; why every website should have one; and understanding the legal implications of agreeing to a TOS Agreement.
What is a TOS Agreement?
A term of service agreement is a document that outlines the terms and conditions that a user must agree with to use the services of the Internet Service Provider (ISP). Agreement to an ISP's TOS Agreement is usually required before the user can access the ISP's website. However, these agreements are always long and riddled with legal terms which most users do not read or simply do not understand. As a result, most users agree to the terms without knowing exactly what they are agreeing to.
Why are TOS Agreements important?
Terms of Service Agreements are important because they do the following:
1. Outline the services provided.
2. Explain what type of content the user can download and share on the site.
3. Explain who owns content provided by the user or ISP on the site.
4. Outline the required conduct of users of the site.
5. Require that users comply with applicable laws and regulations.
However this list is not exhaustive. The above terms ensure that the ISP is adequately protected from certain claims by users of their service. It also protects other users of the service from claims and from conduct that is harassing, derogatory, or offensive. These terms definitely come into play when users post original content that they have created, i.e, intellectual property. Intellectual Property is owned by its creator. However, an owner of intellectual property can always license, sell, or transfer rights and ownership in the intellectual property. If an individual or entity uses another's intellectual property without their permission, the owner can assert a claim for infringement. Considering the potential legal claims for infringement, all ISPs have very extensive and iron-clad clauses regarding intellectual property posted on their sites. Usually the clauses contain the following terms:
"You grant the ISP a perpetual, royalty-free (no payment) irrevocable, non-exclusive license to use, reproduce and distribute your Content within the service.......You authorize third parties to use and reproduce your content." Second Life TOS.
In addition, in some cases the ISP can use your content in any or all media for marketing and/or promotional purposes in connection with the Service. Furthermore, some TOS agreements state that any intellectual property you post on their site is 100% owned by the ISP!
Usually if a user terminates the service with the ISP, these clauses are no longer in effect. Facebook briefly changed this term to state that they owned the content regardless of a user's termination. Why? Because of the nature of file-sharing that is commonplace on a site such as Facebook, Facebook can not control who has access to your intellectual property or how they use it. So once you terminate your relationship, Facebook may delete your account, but your content may still live on Facebook through file sharing.
What are the legal implications of the above clauses?
When agreeing to a TOS Agreement make sure you read the agreement and understand what you are agreeing to. Every ISP's TOS Agreement is not the same. For example, any intellectual property created or posted in Second Life is 100% owned by the user. However, when using virtual world sites such as Disney or Coca Cola, the TOS Agreement states that they will own any material created or posted by the user.
Essentially, if you want total control over your intellectual property either do not use the service or do not post any material that you do not want the ISP to use or retain as they wish. Crying foul after you have agreed to an ISP's terms and conditions will not disaffirm or erase what you have already agreed to.
I welcome your thoughts!
