Opening Statements

Social Studies

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Photo © 2009 Apple Inc.

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.

In response to the protests, Facebook reverted to its old terms of use and has allowed users to help determine its new terms of service. While Face­book’s about-face may have been unusual, even more unusual was that in this case consumers both read the website’s proposed changes and expressed strong opinions on them.

While Facebook is a convenient example of the obstacles networking sites encounter when creating or changing terms of use, it is far from the only one to face these issues. Other free social networking sites—including MySpace, Twitter and LinkedIn, as well as photo- and video-sharing sites like Flickr and You­Tube—are facing similar challenges as they try to determine how to profit by mining data and repurposing content, says Evan Brown, a Chicago attorney with Hinshaw & Culbertson and an Internet law blogger. When creating terms of service, attorneys must balance those business realities with users’ copyright and privacy expectations.

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.

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