Facebook ToS Redux

February 23, 2009 6:30 AM

The consumerist takes a look at Facebook's attempts at a new Terms of Service. Normally I would go straight to the article from a blog like this. But The Consumerist has good comments and in order to see anything on the Facebook side you need to be logged in.
posted by theichibun (38 comments total)

Previously
posted by burnmp3s at 6:41 AM on February 23, 2009

Have US courts established how binding TOS are? iTunes changes its TOS weekly and nobody reads it. I would guess fewer than 1% of computer users read, or even skim, TOS. Are there limits to what can be put in a TOS and be considered enforceable given that the typical computer user cannot be reasonably expected to read every one encountered?
posted by justkevin at 6:53 AM on February 23, 2009

Amid this PR storm, no one has pointed out the real issue here, which is that the guy masterminding these legal changes is Ted Ullyot, who previously worked in the Bush Administration under then-Attorney General Alberto Gonzales, surrounded by coworkers who unabashedly defended torture and shredded the Bill of Rights. Amazing, isn't it, that people are talking about a site's legal boilerplate, rather than the guy who Zuckerberg picked to enforce it?

That's from valleywag, where every item is written in a kind of over-the-top way, but still, why would anyone hire someone from the Gonzales DOJ?
posted by delmoi at 6:56 AM on February 23, 2009 [2 favorites]

I actually think TOSes need to be standardized and regulated. When you buy a stock option, for example, you're agreeing to a contract, but all of the contracts are exactly the same and regulated by the government.

Take all the common TOS boilerplate, let the legislature figure out which rules are reasonable and which ones are not, then a terms of service could simply say something like "by doing whatever you agree to the standard terms of service as defined by US Code bla bla bla" You could have different options for things like warranties and such.

Also, arbitrage requirements should be banned in cases where the damage is over a certain amount. So it's reasonable to do arbitrage if you feel like you were over charged on your cellphone bill, but not reasonable if your cellphone catches fire and burns your nuts off.
posted by delmoi at 7:03 AM on February 23, 2009 [6 favorites]

I don't know about Terms of Service, but the actual operation of Facebook was terrible even before this latest issue. When you install an app, can't it access all of your data? And then send it wherever? That right there is enough to keep me from putting anything on Facebook (the impossibly busy UI keeps me from using it even casually).
posted by DU at 7:03 AM on February 23, 2009

so don't install any facebook apps. i've been on facebook for a year or two, i've never installed any apps, i just use it keep with what my friends are up to.
posted by exhilaration at 7:06 AM on February 23, 2009 [3 favorites]

I'm sure the Facebook folks are getting a good laugh out of those suggestions. But this should be standard everywhere:

Users should be notified of changes to the ToU ahead of time, so they can decide whether they want to continue to use Facebook or to close their account.
posted by mediareport at 7:06 AM on February 23, 2009

TOSes have become such laughable piles of legalese that some people actually add easter eggs to them so that the few brave souls that read them can get a laugh. (Check out section 11 of the Wordpress TOS for example.) In fact there was some shareware app a few years ago that hilariously included an email address buried in it that offered a cash reward to the first person that actually read it and sent a note to that address.
posted by Rhomboid at 7:12 AM on February 23, 2009 [1 favorite]

Also, arbitrage requirements should be banned in cases where the damage is over a certain amount. So it's reasonable to do arbitrage if you feel like you were over charged on your cellphone bill, but not reasonable if your cellphone catches fire and burns your nuts off.

please let me know if you ever plan on running for congress. my vote would be yours.
posted by krautland at 7:12 AM on February 23, 2009

i've never installed any apps, i just use it keep with what my friends are up to.

Are anybody's friends ever up to anything other than "I just installed this app, you do it too and we can play together"?
posted by DU at 7:23 AM on February 23, 2009 [1 favorite]

Facebook is a hell of a lot more useful from their iPhone application than the facebook.com website. There's no shitty applications, no advertisements, and the important stuff -- status updates from friends, and contact information for friends, loads very very quickly. The rest of the site is garbage; this essential boiling-down makes it all actually work.
posted by seanmpuckett at 7:31 AM on February 23, 2009 [2 favorites]

There's some contradiction, both practical and philosophical, between these two items:

* Facebook's use of my content should be subject to an easy-to-understand license, like Creative Commons, which lets me maintain ownership and control.
* If I post or upload any piece of content to Facebook, their license to use that content should expire the moment I delete it. If I close my account, all of my content should be deleted off of Facebook's network.

But what really gets my goat is this one:

Write it in English: No legalese (or Latin!) please.

Why do people still think like this? When you start seeing buddy-buddy contracts and "plain English" explanations that don't really explain what's in the contract, that's very bad for the consumer. If we don't have contracts with objective meanings, we're basically handing our asses over to Facebook to do whatever they like with them.
posted by roll truck roll at 7:32 AM on February 23, 2009 [4 favorites]

So it's reasonable to do arbitrage if you feel like you were over charged on your cellphone bill, but not reasonable if your cellphone catches fire and burns your nuts off.

There's a joke about natural selection in action somewhere in there.

Also, please don't use the small tags for quotes; it's counterintuitive and hard to read. I find that smaller fonts are best used for less important stuff, like asides and grumbling.
posted by ghost of a past number at 7:37 AM on February 23, 2009

like Creative Commons
I like the idea behind CC a lot but sadly many seem to take anything posted under any CC license as "oh gR3aT, IZ frEe!" wired blogs are a good example.

ghost: Also, please don't use the small tags for quotes; it's counterintuitive and hard to read. I find that smaller fonts are best used for less important stuff, like asides and grumbling.
please don't try to tell me how to format my comments. you only get that privilege when you pay my rent.
posted by krautland at 7:41 AM on February 23, 2009

please don't try to tell me how to format my comments. you only get that privilege when you pay my rent.

Well, I'm allowed to complain, am I not? I thought you want us to read it.

I'll shut up if you pay my rent though.
posted by ghost of a past number at 7:47 AM on February 23, 2009 [1 favorite]

Is this the thread where someone is handing out free rent money? Cuz I'm down with that.
posted by blue_beetle at 7:57 AM on February 23, 2009 [2 favorites]

When you install an app, can't it access all of your data? And then send it wherever?

Yeah, and actually there were some people who wrote an app that got popular and then tried to sell it, along with all the user data on ebay for $20k. It's ridiculous, none of these apps actually need that data, and they all suck too. I think Facebook realized how lame these were and kind of demoted them to off the main profile pages.

I actually think facebook has gotten even more boring lately. I would really like to see a distributed social network that isn't controlled by one person.
posted by delmoi at 8:17 AM on February 23, 2009

I'll shut up if you pay my rent though.
oh, yeah! you pay mine, I'll pay yours. we'll see who wins.

I actually think facebook has gotten even more boring lately.
don't let your friends hear that, they might take offense.
posted by krautland at 8:21 AM on February 23, 2009 [1 favorite]

TOS and EULAs are something that need to be seriously re-thought. Both of these need to be presented, in clear, plain english (or other, localized languages, of course) up front, before purchase/use. And let's keep it to two paragraphs, shall we?

EULAs, especially, need to be made available before the customer so much as opens the box, or downloads the software. And, in the case of downloads, before credit card info has been handed-over.
posted by Thorzdad at 8:43 AM on February 23, 2009

How did TOS and EULA become so prevalent in software? There are much more potentially damaging business relationships people enter into every day with no conditions spelled out. Or do I unknowingly agree to preconditions when I step in McDonalds?
posted by the jam at 8:49 AM on February 23, 2009

Pedantic dick time: Pretty sure you're talking about arbitration^ not arbitrage^.

As for how EULAs become so widespread in software - you never knew the moment the user was touching your (sometimes totally free or distributed by channels you didn't control - so no transaction to download) software and you wanted to cover your ass by stating the limits to how it was okay they used it since there were so many ways they could use it to do stuff for which you might conceivably be held liable. The EULA pretends to push that liability onto the consumer and in large part we seem to think it works.

Once there was a legal vehicle in place some producers started conceiving of ways to not only reduce liability but to assert rights. The rest is history.

I have no idea how well or badly these ideas have held up in court though. The legalese used to be scary but in a way there's so much now that one just presumes* that if it is really dangerous somebody will make a Facebook group about it.

*at one's peril
posted by abulafa at 9:32 AM on February 23, 2009 [2 favorites]

arbitrage requirements should be banned in cases where the damage is over a certain amount.

I don't see why arbitration requirements aren't banned (or at least void) in every case, regardless of damages. If I contract to do something for you in exchange for something in return, and you don't fulfill your part of the bargain, I don't have to continue to fulfill mine; we go to court instead. Even if my part of the bargain was "I promise not to take you to court", what makes that an exception?
posted by roystgnr at 10:02 AM on February 23, 2009

I'm not particularly happy with the Facebook TOS, but there are people out there who have some really bizarre expectations of what they should be able to do with the site. Someone was explaining to me how the new, and now withdrawn, TOS was interfering with her using Creative Commons licensed material in the FB group for her academic/professional conference.

My answer of "why are you putting that material on Facebook, which is for socializing, in the first place?" was not appreciated. Sure, you can use it that way, but the service isn't designed for it and the TOS doesn't support it, so getting mad that it doesn't work that way is pointless.
posted by immlass at 10:18 AM on February 23, 2009

I remember from my distant studies of English law that, when it comes to interpreting terms of contracts printed on things like delivery notes, the courts will not incorporate onerous terms unless special attention is drawn to them, and that the more onerous and out of the general run of consumer expectation the term is, the more attention needs to be drawn to it.
posted by athenian at 10:33 AM on February 23, 2009 [1 favorite]

Pedantic dick time: Pretty sure you're talking about arbitration^ not arbitrage^.

Hah, how did I mix that up? I must have been thinking about the stock market too much lately.

I don't see why arbitration requirements aren't banned (or at least void) in every case, regardless of damages.

The original idea behind arbitration makes sense, it was usually done only between businesses, and it reduces the overall cost of all transactions for both sides. A lawsuit, even if you're ultimately correct takes up a huge amount of time and money. When you have two partners of equal negotiating positions it can make sense to have an arbitration clause.

The problem is when you have unequal negotiation positions, or where every seller requires arbitration clauses, or if it's an employee/employer relationship (I don't think employers should be able to require arbitration at all!).

I think it can be a good tool for solving run of the mill disputes (like a billing dispute) in a cost effective way, but even that minimal use needs to be heavily regulated to ensure that the process is fair to both parties, and not simply doing whatever the corporation wants.
posted by delmoi at 10:39 AM on February 23, 2009

it was usually done only between businesses, and it reduces the overall cost of all transactions for both sides.

Yeah, arbitration should often be a good idea. Binding arbitration clauses and the enforcement thereof are what don't make sense to me.
posted by roystgnr at 11:25 AM on February 23, 2009

From the iTunes TOS:

You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

posted by desjardins at 11:47 AM on February 23, 2009 [8 favorites]

The TOS doesn't apply to me, I rigged a contraption to let my cat approve it.
posted by mullingitover at 11:52 AM on February 23, 2009

krautland says:

I like the idea behind CC a lot but sadly many seem to take anything posted under any CC license as "oh gR3aT, IZ frEe!" wired blogs are a good example.

Wired used one of my CC non-commercial photos on their blog. Is this common? Have the villagers stormed the castle with torches and pitchforks yet?
posted by zippy at 12:11 PM on February 23, 2009

That's amazing, desjardins.
posted by roll truck roll at 12:42 PM on February 23, 2009

zippy: Wired used one of my CC non-commercial photos on their blog. Is this common? Have the villagers stormed the castle with torches and pitchforks yet?

they used an all-rights reserved photo I had on flickr as well and didn't even apologize when I called them out on it. in fact they were suck douchebags that I should have sued them straight away. I did a quick check last month and instantly found four "all rights reserved" images from flickr in their blogs and tons of CC licensed ones that did not allow for commercial use, which they clearly are violating. it's a habit with them and they seem to be getting away with it.
posted by krautland at 1:35 PM on February 23, 2009

I don't want anyone named TOS or EULA coming around to burn my nuts off.
posted by Lipstick Thespian at 2:25 PM on February 23, 2009

I'm not sure what all the fuss is about... If you don't want Facebook to use your photos, use the Flickr photo app to link to your photos - Facebook can't get at them.

Don't want Facebook to access your user data? Don't input things like your birthdate (it's amazing how many people do this), high school or college (ditto), or your phone number (ditto), street address (ditto), and don't use stupid, pretentious apps like "iLike" or whatever. Also: use a throwaway email address, and, for god's sake, don't buy anything from Facebook (like the stupid virtual "gifts") using your credit card number.

What you have left is the ability to easily organize a get-together on Saturday night (remember, post the photos on Flickr), or a dead-easy-to-use blog. I just repost interesting links from MetaFilter.

Also, make sure you have control over your privacy settings, and disable "Facebook Connect" or whatever the successor to Beacon is called.

This is what I do. Am I somehow leaving myself exposed to their new, horrible TOS?
posted by KokuRyu at 4:53 PM on February 23, 2009

Are anybody's friends ever up to anything other than "I just installed this app, you do it too and we can play together"?

This happened to me a lot for maybe the first 6 months or so that apps existed, but not anymore.
posted by !Jim at 5:12 PM on February 23, 2009

I thought I saw a webapp that would actually parse a TOS & highlight egregious terms, but all I can find is a Windows app that parses EULAs, which seems like a good start.
posted by Pronoiac at 6:19 PM on February 23, 2009

Y A W N. Is there *anything* interesting to say about facebook?

... other than ... in thebestofallpossibleworlds ... Ullyot is the evil old witch in the candy house and you kiddies will end up barely escaping his oven?
posted by Surfurrus at 12:43 AM on February 24, 2009

The real question is if the TOS would even stand a chance in court. I mean, nobody reads them, they are too hard for the common man to understand, but they do give companies all this power. If it ever comes to a court case I don't think the companies stand a chance; the consumer will always win with a jury.
posted by remcobron at 6:20 AM on February 24, 2009

Just turn off the computer and step away. That way facebook can't get at you.
posted by razorfrog at 12:22 PM on February 24, 2009