I am not a lawyer.
That said, risk management conventions might drive you and your company to seriously consider reducing your use of Facebook for any corporate activities, marketing included, until the current Facebook content “ownership” issues get worked out.
Your shareholders generally own corporate intellectual property. In many situations that IP represents material current and future value.
Your marketing investments may be diluted by use of your words and images in ways that are not under your control and not in support of your tactical and strategic plans.
Facebook re-wrote its Terms of Service (TOS) on Wednesday, February 4, 2009. Then around mid-day, Suzie White, Facebook’s Corporate Counsel for Commercial Transactions, wrote a short explanation for the TOS change.
What followed was blogger/twitter uproar, with consumerist at the center…
Facebook founder Mark Zuckerberg attempted to resist that energy with “On Facebook, People Own and Control Their Information” posted today at 2:09pm. He offered his philosophy, and some misdirection, but little of substance about the specific TOS changes, their legal meaning, and their place in Facebook strategic planning.
The new TOS is available here: http://www.facebook.com/terms.php, including:
You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service...
For comparison, a previous version of their TOS is available at: http://web.archive.org/web/20071012215843/www.facebook.com/terms.php
Facebook little in the way of copyright preferences. When taken in the context of their TOS details, businesses whose value is more concentrated in creative work and intellectual property, or whose value is largely associated with customer, partner, and supplier “trust” might want to consider investing much of their Web2.0 collaborative energy elsewhere while this gets sorted out.
Image, and the marketing used to craft and support it, tends to evolve. Unexpected use of historical content could diminish the value of current marketing investments. Under some circumstances it might even reduce the value of your brand.
Amanda L. French has compared some of the Facebook terms of service with those of MySpace, Flickr, Picasa, YouTube, LinkedIn, and Twitter. This might help provide some context.
UPDATE 1: After attempting to sell a position that he summarized as: “In reality, we wouldn’t share your information in a way you wouldn’t want.” Mark Zuckerberg announced today (16 Feb 2009) that “we have decided to return to our previous terms of use while we resolve the issues that people have raised.”
UPDATE 2: In a very different tone, Mark Zuckerberg announced a replecement for his “trust us” theme with a new process involving member voting on Facebook proposals for governing principles, along with rights and responsibilities (27 Feb 2009). He introduced this new process by explaining that: “Our main goal at Facebook is to help make the world more open and transparent. We believe that if we want to lead the world in this direction, then we must set an example by running our service in this way.” Implementation, he explained, is grounded on the concept of “giving you a greater opportunity to voice your opinion over how Facebook is governed.” To that end, he announced that the corporation is “publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we’ll consider—or the reason we won’t consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use.”
Publishing documents and permitting member discussion about those documents strikes me as a little underwhelming. It is easy, it is cheap, and it keeps members busy. About 24 hours after the announcement, Google News listed 214 “related articles, and my quick scan of the headlines and summaries, and a very few full reads leads me to believe that the initial response is generally positive. Depending on how this plays out, it may be no more than a keen misdirection ploy by Facebook to focus member’s energy on a collection of non-binding words so that the corporation can get back to business. Mr. Zuckerberg explained that the corporation is still going to create new and disruptive technologies, and that “products must be consistent with the Principles and in compliance with the Statement of Rights and Responsibilities, they will not be subject to the notice and comment or voting requirement.”
The Facebook principles include: Freedom to Share and Connect, Ownership and Control of Information, Free Flow of Information, Fundamental Equality, Social Value, Open Platforms and Standards, Fundamental Service, Common Welfare, Transparent Process,and One World. The Facebook Statement of Rights and Responsibilities includes around 170 statements and assertions under the headings: Privacy, Sharing Your Content and Information, Safety, Registration and Account Security, Protecting Other People’s Rights, Mobile, Payments, Share Links, Special Provisions Applicable to Developers/Operators of Applications and Websites, About Advertisements on Facebook, Special Provisions Applicable to Advertisers, Amendments, Termination, Disputes, Definitions, and Other.
So, what about information security? All this commenting and voting will not change the fundamental issue of controlling your intellectual property and managing your brand. Facebook leadership says that they will continue to do evolve their business without notice, comment, or voting. That looks a lot like where this current puff-up started. If your company uses Facebook as a channel for any part of your operations, communications, and/or marketing, you still need to carefully consider how events can play out over time. Facebook business practices will continue to evolve. Think through how that might impact your value proposition as you evolve your company. Here is what I see as the key risk: unexpected or unwanted use of historical or legacy content could diminish the value of “current” marketing investments. Under some circumstances it might even reduce the value of your brand. That is the kind of risk that can be taken lightly.
I am curious about how you and your company are dealing with this situation. What issues are most important in your discussions?
— References —
Current Facebook Terms of Service (TOS): http://www.facebook.com/terms.php
Earlier Facebook Terms of Service (TOS): http://web.archive.org/web/20071012215843/www.facebook.com/terms.php
Suzie White, Facebook’s Corporate Counsel: http://blog.facebook.com/blog.php?post=50531412130
“On Facebook, People Own and Control Their Information” by Mark Zuckerberg, posted today at 2:09pm. http://blog.facebook.com/blog.php?post=54434097130
Twitter: http://search.twitter.com/search?q=%23facebooktos
Consumerist.com “Facebook’s New Terms Of Service: ‘We Can Do Anything We Want With Your Content. Forever.'” By Chris Walters, 6:14 PM on Sun Feb 15 2009. http://consumerist.com/5150175/facebooks-new-terms-of-service-we-can-do-anything-we-want-with-your-content-forever
Amanda L. French, PhD, “Facebook terms of service compared with MySpace, Flickr, Picasa, YouTube, LinkedIn, and Twitter.” February 16, 2009 – 2:28 pm: http://amandafrench.net/2009/02/16/facebook-terms-of-service-compared/
“Facebook: Relax, we won’t sell your photos.” Caroline McCarthy, http://news.cnet.com/8301-13577_3-10165190-36.html?part=rss&tag=feed&subj=TheSocial
Updates #1 from: http://news.bbc.co.uk/2/hi/technology/7894476.stm and http://news.bbc.co.uk/2/hi/technology/7896309.stm
Updates #2 from:
Completosec Channel 
It makes no sense that Facebook would risk messing up a good thing by edging in on people’s intellectual property. They had people’s trust and then they go and risk losing it; not smart.
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