Social Network Terms of Service: what's mine is whose?

I'm troubled by something, and yet I'm not sure whether I really ought to be worried or not.

Hardly a day goes by without a handful of invitations to new social networking services landing in my inbox. The e-friend machine du jour seems to be this Spock thing. I'm getting 3-4 "requests for my trust" per day. And if it's not Spock, it's Trig, or ECademy, or MyRagan, or Quechup, or some other Ning-based abomination.

No offense to any eager YASNS developers out there, and I really do appreciate the invitation, but frankly, I'm just getting really tired of all these Web 2.oh communities that want to lay claim to all of the content contributed by their users.

The Spock Terms Of Service are a good example. They include a piece of irritating legal boilerplate that is popping up - in one form or another - all over the place:

"You hereby grant Spock (and each of its registered users, as limited by the "Personal Use Only" section, above) the royalty-free, unlimited, perpetual, non-exclusive, irrevocable right and license to make, use, copy, distribute, display, publish, perform, modify, or translate any such Postings for any purpose and in any medium worldwide (including but not limited to incorporating the Postings into Spock databases or any other Spock property, product, or service) and to sublicense the foregoing rights, and this sublicense right, to others."

I'm sorry, but no.

I have no qualms about contributing pretty much anything I write to the commons. That's why this blog carries a Creative Commons license over there in the lefthand sidebar. But why would I want to grant all rights to these guys to do whatever they want with my stuff, potentially including making money out of it...?

I'm sorry if that isn't very big-S Social and collaborative and "spirit of giving" of me, but really.

There are already enough sites out there scraping my inane bletherings and running ads alongside them without me explicitly opting into yet another one. I can't imagine the deluded losers who lift my posts for their splogs are making much more than a tin sou from the practice, but what ever tiny amounts they are making, I'm sure as hell not seeing any of it. I don't even make any money out of the stuff I publish on my own server - and nor do I choose to (which is, I believe, the entire point).

But it's not about the money - it's about the content and it's about hierarchy of rights. I'd like to think it was as simple as:

1. What's mine is mine;
2. Anything mine that I say you can have is both yours and mine (where you = humanity in perpetuity).

...subject to certain conditions in some cases. Actually, I think that's pretty much what my existing Creative Commons license does say.

The catch is, when one joins one of these services, one is explicitly accepting their terms - terms which, in most cases, allow them to ignore whatever restrictions (or unrestrictions) you've put in place.

Of course, the problem is not limited to Spock. Facebook has pretty much the same rotten garbage in its ToS, as does LinkedIn.

Here's a use case: my Facebook profile includes a sort of mini-aggregator. At some point, before I stopped to think about these things, I plugged in a little FB app that reads my RSS feed and republishes my blog posts inside the Facewall (to use Doc's excellent phrase).

Outside the Facewall, those blog posts live a carefree, pastoral existence - roaming happily through the wilds of the Net, mostly unworried by issues of ownership. Once inside Facebook, however, they become potentially commercial objects - part of the giant content mill, churning away in the never-ending quest to build a better advertiser magnet.

Outside the Facewall, they're mine and freely distributed to the world at large, under simple CC licensing provisions.

Once inside, though - now who do they belong to?

Still me, I guess, but I've also unwittingly given the Facebookkeepers "an irrevocable, perpetual, non-exclusive, 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".

That's my emphasis, of course - it's the "commercial, advertising, or otherwise" part that really grates.

In similar vein, I recall hearing Cory Doctorow complaining about the well-known Audible audio books service on a recent episode of the TWiT podcast. Cory won't allow Audible to distribute his excellent books in audio format because they insist on adding DRM to works he has already published under CC licenses. It's the same kind of hierarchy of rights issue, I think.

There are some notable exceptions in the Web 2.0 world. Google's Orkut, which I played around with for a while in 2004, still includes the gotcha text, but they were nice enough to throw a few clue-brackets around it:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.


9.4 Other than the limited license set forth in Section 11, Google acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Google, you agree that you are responsible for protecting and enforcing those rights and that Google has no obligation to do so on your behalf.

That makes sense. They seem to be saying: "the law is all a bit fuzzy here, so you'd better grant us some rights to your stuff just so that we can host, publish and distribute it. But it's still definitely your stuff."

An even better example, from my simplistic, unschooled point of view, is in the Twitter ToS. OK, so Twitter's not what most people might call a "social network" - but there are certain similarities and it is, above all, primarily a vehicle for content. The relevant excerpt:

We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours."


So. Am I wrong to worry about all this stuff?

If I post something to my blog which is later syndicated on my Facebook profile page, does my pre-existing CC license trump their evil ToS? Or can they do whatever they want with my words without asking? If my information wants to be free, is it fair for someone else to capture it and lock it up?

This is hard stuff for me to figure out. I like the idea of social network services. We’re social animals by nature, so these online expressions of our flocking behaviour are interesting, welcome and, in several ways, useful.

But it's clear that the long-term success of any one of these services is predicated on having a certain critical mass of users, connections, and content. It's the combination of these three things that attracts the $$ - whether in direct funding or in ad revenue. So one way or another, they're all making money off me. If I don't contribute, they don't grow, and the things I do like about their services will die. But why do they have to be so greasy about it?

I think there's a key difference between the ToS of something like Twitter and the terms you might find at Spock, LinkedIn, or FB. The Twitter ToS sounds like it was directly shaped by the founders. It actually reads like something Ev might have written. The others sound like something lifted out of a corporate legal stockbook of ready-made precedents - pages where no human eye has ever set foot :-)

And therein lies the rub, I think. As Doc Searls wrote earlier today, in a different context: "The only real social networks are personal ones". True. Virtual social networks, at least in their Terms of Service, are just too impersonal.

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