Climbers hugging on the summit of Pico de Orizaba, Mexico. (c) Harry Kikstra, ExposedPlanet.com

It’s even worse

Many of you have read my previous article, “Why sharing photos on Facebook is bad for you“, and have learned that sharing your photos is not just bad for you, but also for your friends and especially for your photography business. Check it out first if you have not done so. I will wait a moment here.

Welcome back. That post got re-tweeted a lot (thanks!) and I got a few comments that made me check my websites and dig even deeper (thank you Matthew, Kerry, Tim and Rob) and it appears the situation is even worse than imagined. My apologies for the following long post involving lots of assumptions and legal stuff. But I think it is important to get this out in the open.

To lighten it up a little, I have added some more cheerful images (you can click on them to go to a larger version on the ExposedPlanet photoblog for details, exif info and comments).

Like this? Please ReTweet!

Ps: all images are mine and link to larger versions on ExposedPlanet.com photoblog. They are available as print, free eCard or commercial/editorial licensing. Or just enjoy them and read the thoughts behind the pictures as well as technical info for photographers!

But first, read and weep:

In defense of Facebook

Facebook is a company that is worth billions. Well done. Unfortunately, as always this attracts all kinds of idiots and lazies looking for easy money as they are too stupid to think of a good idea of their own. Especially in the US it is customary to sue for anything you want, which is a pain in the behind for any company and individual. I am positive that there are dozens of people currently scheming to set up Facebook by testing the legal limits, placing ‘bad’ pictures of themselves through friends and then blaming FB for it.

Lone hiker above the Horseshoe Bend of the colorado river. (c) Harry Kikstra, ExposedPlanet.com

FB needs a strong defense against this, and also to allow FB users to share links, comment on each other’s photos and do all things that makes FB a successful social tool. I totally agree that they keep it strict to avoid problems rather than fixing them.

But that does not mean that they need to wipe out everybody else’s rights like Monsanto’s toxic chemicals on a corn field. Yes, it will do the job, but meanwhile destructing everything else.

I am a photographer and no IP lawyer, but it seems to me that there is no reason to be able to ‘sublicense’ and ‘transfer’ your IP content ‘worldwide’ ‘royalty free’, while using your private content to show advertisements to your friends unless you opt out of this, while you never get paid for it.

This is not protecting them, just increasing their market value. And as I pointed out, these terms contradict the terms all stock photographers sign for with their stock company, putting them at legal risk.

Disclaimer: do what you want with this information on this blog, but don’t blame me for either taking your pictures off or leaving them on FB. maybe I am wrong, maybe I am right. Surely you should be able to decide for yourself what to do. First, let’s dig a bit deeper in the legal mess of the rest of the  Terms.

Why Low resolution pictures are just as bad.

The first question from Matthew was:

“What about uploading low-res 600px images? Maybe with a watermark?

Sure they could still possibly use them for small FB ads (someone would have to go to the trouble of erasing the watermark), but the quality wouldn’t be good enough for bigger types of sales…”

Maasai child with mother, Tanzania. (c) Harry Kikstra, ExposedPlanet.com

First of all: Low resolution and/or watermarked pix are needed everywhere online to prevent illegal use of your images on any website, even your own. Even if the website (like Flickr) is not ‘dirty’ as Facebook, their visitors could be. So never upload any high resolution versions anywhere on a public site.

I have not read Flickr’s terms of service in detail, but I am sure they will deny responsibility (and rightfully so) if your public supersize images are being abused as anybody can copy them. Don’t blame anybody else for being careless yourself. It’s like leaving all your valuables on the front lawn: some people will just pass and admire them, others will just take them and run. Only difference is that online your things can be taken over and over again.

Problem is that FB can _legally_ use all images, so even low res ones. I think the chances are very small, but I just don’t want this to ever happen and don’t want even the possibility (plus the fact that I sell to stock agencies, which would mean breach of contract with them!). So I have zero photos on Facebook.

What about sharing thumbnails of pictures hosted on Flickr and elsewhere?

Kerry reacted and mentioned:

“What I do use however is flickr, which I have linked to my fb account so it tells people I’ve updated my photostream and often puts a little thumbnail of the photo. Please could you tell me what this could mean in terms of what you’ve described above? “

Cyclist cycling in the Oregon fog at the Pacific coast. (c) Harry Kikstra, ExposedPlanet.com

First of all, Facebook would still be very happy with small pictures, as their current ads system is based on that, they can promote a product and have your name under it and your profile picture (or any other picture you shared). So thumbnails would be just perfect for them.

I replied:

Flickr itself is much more ethical than FB as they do not claim any licensing rights on your photos, so it is good to post photos there (just do not share any high resolution images publicly).  As far as posting links with thumbnails (what is what you are basically describing) I would think that this would not be any problem, as FB could never know if you are posting your own intellectual property or IP from someone else.

If you would upload the thumbnails to your photo album, they then would get all the rights for sure. Again, I am a photographer, not a lawyer and do not know the legal background of the “in connection with FB” part of their terms means. But they lost me long before that with their sneaky terms… They clearly can’t be trusted, so I won’t.

Kids in Northen Belize. (c) Harry Kikstra, ExposedPlanet.com

I think you are both correct and that is why I had started this follow-up post: it is weird and not reasonable at all. But those are not legally accepted terms (else there would be no senseless suing).

Protecting Other People’s Rights

We respect other people’s rights, and expect you to do the same.

1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
2. We can remove any content or information you post on Facebook if we believe that it violates this Statement.
3. We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page.
4. If we remove your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal.
5. If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate.
6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.
7. If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.
8. You will not post anyone’s identification documents or sensitive financial information on Facebook.
9. You will not tag users or send email invitations to non-users without their consent.

So, what does this really mean? I translate the above loosely as:

“You are responsible for all problems resulting from you likely breaking the law as a result of normal behaviour under our crazy terms. It is your responsibility to get legal permissions for things that you did not know that break the law, even if it is the direct result of our terms”

They basically take no responsibility for anything….

But wait, there is more

So it would be better to have your own website and have a share button instead of posting on FB?

The plot thickens.

1. 8: Special Provisions Applicable to Share Links If you include our Share Link button on your website, the following additional terms apply to you:
   1. We give you permission to use Facebook’s Share Link button so that users can post links or content from your website on Facebook.
   2. You give us permission to use and allow others to use such links and content on Facebook.
   3. You will not place a Share Link button on any page containing content that would violate this Statement if posted on Facebook.

Indian warning, don't get your shoes stolen. (c) Harry Kikstra, ExposedPlanet.com

Guess what? Yes, they seem to claim all rights from all websites that have Share (and other FB) buttons and applications. And if they cannot legally claim the content? Then they still do and blame you for offering the button while you shouldn’t have. They are not responsible for anything.

One more quote from the Facebook terms page for developers and web-masters. I have taken out some less offensive parts (numbers will no longer correspond). Just to rub your nose in it:

1. 9: Special Provisions Applicable to Developers/Operators of Applications and Websites If you are a developer or operator of a Platform application or website, the following additional terms apply to you:
   1. You are responsible for your application and its content and all uses you make of Platform. (…)
   2. Your access to and use of data you receive from Facebook, will be limited as follows:
      • You will only request data you need to operate your application.
      • You will have a privacy policy that tells users what user data you are going to use and how you will use, display, share, or transfer that data and you will include your privacy policy URL in the Developer Application.
      • You will delete all data you receive from us concerning a user if the user asks you to do so, and will provide a mechanism for users to make such a request.
      • You will not directly or indirectly transfer any data you receive from us to (or use such data in connection with) any ad network, ad exchange, data broker, or other advertising related toolset, even if a user consents to that transfer or use.
      • You will not sell user data.  If you are acquired by or merge with a third party, you can continue to use user data within your application, but you cannot transfer user data outside of your application.
      • We can require you to delete user data if you use it in a way that we determine is inconsistent with users’ expectations.
      • We can limit your access to data.
      • You will comply with all other restrictions contained in our Facebook Platform Policies.
   3. You will not give us information that you independently collect from a user or a user’s content without that user’s consent.
   4. You will make it easy for users to remove or disconnect from your application.
   5. You will make it easy for users to contact you. We can also share your email address with users and others claiming that you have infringed or otherwise violated their rights.
   6. You will comply with all applicable laws. In particular you will (if applicable):
      1. have a policy for removing infringing content and terminating repeat infringers that complies with the Digital Millennium Copyright Act.
      2. comply with the Video Privacy Protection Act (“VPPA”), and obtain any opt-in consent necessary from users so that user data subject to the VPPA may be shared on Facebook.  You represent that any disclosure to us will not be incidental to the ordinary course of your business.
   7. We do not guarantee that Platform will always be free.
   8. You give us all rights necessary to enable your application to work with Facebook, including the right to incorporate content and information you provide to us into streams, profiles, and user action stories.
   9. You give us the right to link to or frame your application, and place content, including ads, around your application.
   10. We can analyze your application, content, and data for any purpose, including commercial (such as for targeting the delivery of advertisements and indexing content for search).
   11. We can create applications that offer similar features and services to, or otherwise compete with, your application.

Tibetan kid showing peace sign. (c) Harry Kikstra, ExposedPlanet.com

Note that I left some less important parts out, it is mixed with a lot of rules explaining how FB can legally mess with developers of applications, which are horrible enough, but not the subject here.

The main gist is: Website owners and application developers are responsible for all that FB can do and they can’t. You need to comply with all laws, so FB doesn’t have to. If your application is good, FB can and might copy it.

And in case it was not clear that your name and profile picture can be used as well as all content, FB is nice enough to literally spell it out:

10: About Advertisements and Other Commercial Content Served or Enhanced by Facebook

1. Our goal is to deliver ads that are not only valuable to advertisers, but also valuable to you. In order to do that, you agree to the following: 

   1. You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.
   2. We do not give your content or information to advertisers without your consent.
   3. You understand that we may not always identify paid services and communications as such

So you need to state that you do not want this. And likely, “without your consent” does not mean anything as you already signed all rights to all intellectual property away to begin with.

But what about just using a share/like button? Legally, it depends how you define things…

Check out the definitions:

1. Definitions
   1. 

      Chinese borderguard thinking, friendship bridge, border Tibet-Nepal. (c) Harry Kikstra, ExposedPlanet.com

      By “Facebook” we mean the features and services we make available, including through (a) our website at www.facebook.com and any other Facebook branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions); (b) our Platform; (c) social plugins such as the like button, the share button and other similar offerings and (d) other media, software (such as a toolbar), devices, or networks now existing or later developed.

   2. By “Platform” we mean a set of APIs and services that enable others, including application developers and website operators, to retrieve data from Facebook or provide data to us.
   3. By “information” we mean facts and other information about you, including actions you take.
   4. By “content” we mean anything you post on Facebook that would not be included in the definition of “information.”
   5. By “data” we mean content and information that third parties can retrieve from Facebook or provide to Facebook through Platform.
   6. By “post” we mean post on Facebook or otherwise make available to us (such as by using an application).
   7. By “use” we mean use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.

My personal translation, per number:

1) & 2): By having a share or like button on your website you and your website are part of these insane Facebook terms

3) & 4) & 6): Everything you do and/or share on Facebook or any other website with Facebook content, Facebook owns.

7): We can make money of you however we feel like.

What is your translation?

But…

But what if the website owner is not a Facebook user, but just uses the buttons to promote content? Too bad, it falls under the definitions above.

But what if he has content he cannot legally give the rights away of, like user-posted content, or images of people without model releases? You should have thought of that before allowing FB to use all they want in any way they want. You apparently did this the moment you added a ‘share/like’ button or any other FB application like a list of friends etc.

But is this legal? Hey, you accepted the terms by signing up and therefore have signed off on your life. To rub it in and make it legal, some final quotes from the terms page:

1. 18: Other
   1. 

      Young monk in Nepal waiting for his turn to bang the drum. (c) Harry Kikstra, ExposedPlanet.com

      This Statement makes up the entire agreement between the parties regarding Facebook, and supersedes any prior agreements.

   2. If any portion of this Statement is found to be unenforceable, the remaining portion will remain in full force and effect.
   3. If we fail to enforce any of this Statement, it will not be considered a waiver.
   4. You will not transfer any of your rights or obligations under this Statement to anyone else without our consent.
   5. All of our rights and obligations under this Statement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
   6. Nothing in this Statement shall prevent us from complying with the law.
   7. This Statement does not confer any third party beneficiary rights.
   8. You will comply with all applicable laws when using or accessing Facebook.

What? Translated in human speak:

1): We decide what you have signed for even if it was different at the time of signing

2) & 3) & 6): even if we doing illegal things, we are still legal.

4) & 5) & 7): You are responsible for all you do and can never blame anybody else, while others we abuse can blame you. Meanwhile we can sell all your data, intellectual property, private items and all rights and obligations to anybody that wants to buy our shares.

And if we don’t agree?

Well, then you can just terminate the agreement. Or can you? Facebook can, but can you as well?

Termination If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account. You may also delete your account or disable your application at any time. In all such cases, this Statement shall terminate, but the following provisions will still apply: 2.2, 2.4, 3-5, 8.2, 9.1-9.3, 9.9, 9.10, 9.13, 9.15, 9.18, 10.3, 11.2, 11.5, 11.6, 11.9, 11.12, 11.13, and 14-18.

3 Nepali kids in the Khumbu valley, early morning. (c) Harry Kikstra, ExposedPlanet.com

Yeah, yeah, we get it. Whatever you do wrong, it is our fault as by acting reasonably, any FB user will put FB at legal risk due to these insane terms & conditions.

You can block us from accessing our data, while you can still keep on using it in whatever way you like. At least we have a right to dispute. Or have we?

Disputes

1. You will resolve any claim, cause of action or dispute (“claim”) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.
2. If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
   1. WE TRY TO KEEP FACEBOOK UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK.
   2. WE ARE PROVIDING FACEBOOK “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
   3. WE DO NOT GUARANTEE THAT FACEBOOK WILL BE SAFE OR SECURE.
   4. FACEBOOK IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
   5. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
   6. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR FACEBOOK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   7. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR FACEBOOK WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.
   8. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, FACEBOOK’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Flying kid in Stone Town, Zanzibar. (c) Harry Kikstra, ExposedPlanet.com

Hahahahaha.

So if you have complaints, you need to go to a Californian court, but you cannot claim the Californian laws protecting you. Facebook is not responsible for anything, you for everything (yeah, yeah, we get it).

If you manage to hire more lawyers than FB and FB is found guilty of illegal activity after all, then you can claim a maximum of $100.

That is, if you have paid that amount to FB, free users can claim nothing, does not matter if they lost all rights to all photos and content, had their friends and family abused online and have lost their privacy forever.

How about that?

The bottom line:

You are paranoid and over reacting? Facebook is a wonderful marketing tool.

Rob commented:

But I wonder: Is that enough? The conundrum is that many photographers feel that FB is an effective venue for marketing their work, and yet they freely sign away their rights when they don’t read the Terms. Without an established presence on FB — however minimal — I do feel as though I’m missing some action.

Maybe and really? Of course FB is the perfect way to see what your ex-girlfriends are up to, how that bully from high-school has gotten comfortably fat and even some useful social features. But marketing?

There are quite a few posts popping up about the lack of any success stories of Facebook marketeers. Like for regular users, for business it is mostly a waste of time and resources. Show me somebody who actually improved their marketing and sales through Facebook without legally exposing himself as explained above. And I do not mean any teenage pop idols. Don’t forget the threats to photography business I outlined in part one. This is a photography blog and aimed at photographers. But even non-photographers should worry about their privacy

As mentioned above I realize that also FB must protect themselves from the trigger-happy sue-ers out there. It must be a minefield to collect so much info and intellectual property and of course they are careful. But by claiming all rights and disclaiming all responsibilities, they crossed too many unneeded lines. They can do their business without ruining ours, there seems to be plenty of legal space for that.

Frankly I do not think that your images will ever be abused as there are simply too many (and if so, that you ever will find out). It’s not the little fish they are after, but the ones with quality content and those with thousands of friends: those they can target, using your quality content for free.

Globalisation(8) Coca cola drinking boy in Tibet. (c) Harry Kikstra, ExposedPlanet.com

Business = money. The only success story on FB is FB itself and some of its partners like Zynga, the company that made farmville etc. Good for them.

You should wonder why Facebook is valued billions of $$$. Do they produce iPods like Apple? No. Do they make an operating system like Microsoft? Nope.

Facebook’s assets are 90% you and your content and 10% technology, though it likely is more you.

Chances are very slim that they will try to beat Getty in the stock business. But every image you add to FB, adds to their value. And you can never be sure what happens in the future, especially not as they are probably planning to go public.

I guess the bottom line is:

1. – Do you want to have any risk that any of your images are being used without you knowing and do you want to accept the legal consequences of that as you are the one to blame?
2. – And do you really trust a company that clearly is misleading and even though they might not abuse your trust, they could if they want and get away with it?

It’s like signing that contract at the local car dealer. What if there was a small print that said that if you sign once, your signature could be used for any blank contract in the future and you would be legally responsible for any resulting problem or liabilities? That would be absurd right? And you know the guys running the dealership, so it will likely not happen right?

Yes, you are probably right, probably not. But it is what FB does. Partly to protect themselves, but I do not just want to have even 0.001% risk and I definitely do not want to do any business with a company that treats their customers and suppliers with such contempt.

Oh and if you ‘Like’ this post, please Re-Tweet, Stumble, Digg or whatever it. Sorry, no more ‘Like’ button.

Ps: all images are mine and link to larger versions on ExposedPlanet.com photoblog. They are available as print, free eCard or commercial/editorial licensing. Or just enjoy them and read the thoughts behind the pictures as well as technical info for photographers!

Tags: Facebook, Flickr, legal, Share, Stock business, Stock photography

This entry was posted on Wednesday, June 8th, 2011 at 7:26 pm and is filed under Legal stuff, Photography Business. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.