Posted Jun 1, 2009 10:50 PM CDT
By Margaret Littman
In February, social networking behemoth Facebook announced changes to its terms of service. The highly publicized dustup that followed was much like most others: one part misinterpretation, one part overreaction and one part grain of truth.
Facebook users took to the Web en masse, objecting on blogs, on Twitter and elsewhere. At issue was what they perceived as an all-rights grab that gave the website the rights to use any materials users posted on the site— including photos and videos—even after users deactivated their accounts.
Terms of service are treated like any other U.S. contract, says Atlanta technology lawyer Paul Arne of Morris, Manning & Martin. “If you have an agreement, you have an agreement.”
“Thirty years ago, no one would have said these unilateral agreements were enforceable,” says Stanford Law School professor Mark A. Lemley, director of the school’s Program in Law, Science and Technology. But traditional contract law has changed, he says, and courts are enforcing click-through agreements on software and other kinds of unilateral agreements.
While Lemley says reaction to the Facebook changes was out of proportion, it suggests the level of expectation users have about control over what they put online.
That level of control, or lack thereof, is what consumers need to think about before they use a site—and attorneys need to think about when drafting terms of service.
Rather than think about their rights, Arne says users ought to think about their own responsibilities and not post content they do not want shared.
As the Web evolves from 2.0 to 3.0, these questions will only become more complex for those who interpret and practice Internet law. The data captured on a site has significant business value. Looking at what companies can and cannot do with that data is “going to raise some interesting questions as time goes by,” Arne adds.