We encounter Terms of Use for a lot of our online activities, but when was the last time you actually read through all the terms before agreeing to them?
Two recent issues involving popular social media sites Facebook and Pinterest illustrate the importance of reading and understanding a website’s Terms of Use. Earlier this year Facebook faced litigation over the use of its “Sponsored Stories” advertising feature. The “Sponsored Stories” feature allows Facebook to use a user’s profile picture in advertisements for products or services the user has indicated they “Like”. While users in this case argued over Facebook’s right to use their image under state right of publicity law, the “Sponsored Stories” feature highlights just one example of the many ways in which users may license their intellectual property rights through their agreement to a website’s Terms of Use. Similarly, the rise of Pinterest has helped to bring attention to Terms of Use issues related to user content. Pinterest’s earlier Terms of Use explicitly stated that by using the site, users granted Pinterest the right to sell the user’s uploaded content. This language worried many people, causing Pinterest to change their Terms of Use. But while Pinterest’s revised Terms of Use removed the “sell” language, many commentators have correctly pointed out that the language seen in Facebook and Pinterest’s Terms of Use is not at all unusual to the language used by various other social media sites.
As a sample we compared the Terms of Use for 5 popular social media sites (Pinterest, Facebook, Instagram, Twitter and Tumblr) to show some common features in these use agreements. Full Terms of Use for each site can be found at:
Pinterest: http://pinterest.com/about/terms/
Facebook: http://www.facebook.com/legal/terms
Instagram: http://instagram.com/legal/terms/
Twitter: http://twitter.com/tos
Tumblr: http://www.tumblr.com/policy/en/terms_of_service
1. Ownership of the uploaded content
Of the 5 social media websites we looked at, all provide that the user retains ownership over their uploaded content.
2. Licensing of user content
While users retains ownership over their uploaded content, all of the sampled sites condition use of the site on the granting of a license to use the uploaded content. For most social media sites, this license calls for non-exclusive, worldwide, royalty-free, transferable and sub-licensable permission to use the uploaded content in accordance with the uses outlined in the agreement. This means that if you sign up for one of these social media sites and upload content such as a photograph, that site has the right to use that photograph anywhere in the world, and without paying you, if the site’s use conforms with the uses set out in the Terms of Use. This also means that the site has the right to allow others to use your work in the same way the site can. But because this license is often times non-exclusive, users retain the right to license out the use of the content to others besides the particular social media site they have uploaded their content to.
The duration of the license, in most cases, extends in some form past the date in which a user may delete their account with the website or remove the content from the website. In most cases, the license extends for a commercially reasonable time period for back up, audit, or archival purposes. Some sites, such as Tumblr, extend the license past termination of services for the express purpose of preserving speech, recognizing that in some circumstances removal of user content that has been commented on by others may result in censorship of speech. For Facebook, the license to use user content ends when the user deletes the content or their Facebook account, with a big exception. If the user has shared their content with others, such as by posting the content on another’s wall, the license does not end unless that other party has also deleted it.
3. How the site may use your content
As discussed above, in most cases use of a website constitutes agreement to the website’s Terms of Use. And in most cases those Terms of Use require a user to grant a license to the website for any user uploaded content. The perimeters of that use are further defined by additional language within the Terms of Use, and likely will state how the social media site itself may use the content, and how the social media site may allow others to use the content.
- By social media site: The license granted by the user to the social media site typically allows the site to display, reproduce, modify, or distribute the content. Some sites expressly limit this use of the content for the purposes of operation, improvement of new services, and/or development of new services. Modification, such as recoding or reformatting, is also typically allowed to make sure that the content conforms with the service being offered.
- By third parties: Once you have uploaded content onto a social media site, other users of the website may see that content and may be permitted to use the content within the website, all subject to any privacy or use setting you may have attached to your account. In addition, several sites rely on advertising revenue and will make the use of their site conditional on an agreement to allow third party companies to place their advertisements on or in conjunction with user uploaded content. When it comes to third parties actually being able to use your content, social media sites vary in their provisions. Facebook, for example, does not giver user content to third parties without the user’s consent. Twitter’s license, however, allows them to make the content you have submitted available to other companies, organizations, or individuals that partner with Twitter for the syndication, broadcast, distribution, or publication of the content on other media and services, without first obtaining your consent. On Tumblr, the license granted allows Tumblr to make all publicly-posted material available to third parties selected by Tumblr for the purpose of analyzing and/or distributing the content on other media or services.
4. Liability for Copyright Infringement
Another common provision affecting a user’s copyrighted work is the limitation of liability for social media sites when it is discovered that a user’s protected work is being used on the site, by a third party, and without the user’s permission. In this situation the user may not have any recourse against the website for their role in allowing an opportunity for infringement. This is because many of these social media sites fall within the definition of “service provider” under the Digital Millennium Copyright Act. Under the DMCA, if these sites comply with certain take down provisions upon being notified of an infringing use, they may be able to escape secondary liability.
Because of this Pinterest, Twitter, Facebook, and Tumblr’s Terms of Use all contain a procedure for notifying the company of copyright infringement, while Instagram (recently purchased by Facebook) provides a similar procedure elsewhere on their website. In addition, to make clear that their liability is limited, many social media sites state in all caps that, to the extent permitted by law, their company (and all directors, officers, shareholders, employees, representatives, agents, consultants, suppliers, and distributors) are not to be held liable for any damages related to the unauthorized access, use, or alteration of user content. Twitter, example, states that in any event the total liability they can be held accountable for is $100 or the amount a user has paid to Twitter (if any) in the 6 months prior to bringing a claim. In all 5 social media sites we considered, the site does not take responsibility for the content posted by users but does reserves the right to remove content they believe is unlawful or objectionable.
Our review above covers some common clauses you are likely to see in Terms of Use for existing and upcoming social media sites. While there are a lot of commonalities in the Terms of Use for most social media sites, each website could potentially have their own unique provisions related to user content. For this reason it is important that users concerned with how their own content will be protected or exploited, read all the applicable terms of use prior to submitting their content.
The Terms of Use provided should make clear what content you retain control over, and any license you may be granting as a condition of your use of the site. If you have read the Terms of Use and wish to accept them, you may be able to limit the exposure of your content through configuration of your settings within the program or application. An individual concerned with their content being used without their permission by other users may want to adjust their settings to private, or otherwise limit the number of individuals who can access their content. In addition, some sites allow users to opt out of sharing with third parties such as advertisers.
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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.
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