Archive for the ‘Internet Free Speech’ Category

How do companies get away with slipping arbitration clauses and other abusive terms into their contracts? For one thing, they rely on the fact that most people do not have the time or motivation to read all the fine print, and that many of those who do will not understand the implications of what they are agreeing to, or will not care enough to object. Even those who do complain will not likely get far because consumer contracts are typically offered in a take-it-or-leave it manner.

This week, however, Facebook’s attempt to take advantage of the usual ignorance and apathy backfired in a big way. A couple weeks ago, Facebook revised its terms of use in a way one would not expect to lead to a major controversy. Specifically, it deleted this language from its terms of use:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

The removal of this language wouldn’t have meant much to most users, and it doesn’t seem to have attracted a lot of attention at first. But as time went on, a few began to figure out the implications of the change and to write about it on Facebook and on their blogs. Basically, Facebook was saying that the perpetual license that it had granted itself to the contents of users’ profiles would no longer expire when those users shut down their accounts. Translation: “We Can Do Anything We Want With Your Content. Forever.

Outrage grew and spread, leaping from the blogosphere to the mainstream media. People began to look to other problems with the agreement, including an arbitration clause, and the requirement of using a single arbitrator in Santa Clara County, California.

Eventually, the controversy became big enough that Facebook could not ignore it, and last night in a late-night blog post the company’s CEO, Mark Zuckerberg, announced that the terms of use would be rolled back to the previous version. Facebook’s license to its users’ content will expire once again. Arbitration remains as it was in the old agreement, but is no longer limited to Santa Clara County. Moreover, the company says this is just a temporary step. The old terms will remain until the company can draft new terms that are responsive to users’ complaints. Zuckerberg promises that the new terms will be “written clearly in language that everyone can understand” and that “Facebook users will have a lot of input in crafting these terms.” A new Facebook group, Facebook Bill of Rights and Responsibilities, was created for this purpose.

The Facebook incident raises the question whether the Internet is changing the balance of power between the drafters of one-sided terms of use and their customers. Even if most of a company’s users don’t read revised terms of use, it’s pretty likely that at least a few will. Those few who take the time to understand the legalese can communicate with others on Facebook, on their blogs, and in the countless other forums the Internet provides. And the company can no longer easily ignore attempts to renegotiate abusive terms when it’s not just one or two customers, but thousands, that are complaining.

Cross-posted from the Consumer Law & Policy Blog

2515669598_49eaa78414_mHow much is too much? That’s the question when it comes to a dispute between Fox Chicago and, a news site that had its YouTube account suspended after it posted short video clips excerpted from Fox Chicago broadcasts. Fox complained that the clips were posted in violation of the Digital Millennium Copyright Act. Public Citizen, which is representing ProgressIllinois in the dispute, says the DCMA protects the “fair use” of news excerpts, especially for the use of political commentary. Exactly the way the Fox excerpts were used on

In a statement released today, Public Citizen attorney Paul Alan Levy said the dispute is a perfect reminder of the need to amend the DCMA “so that political commentary is not put on hold while the procedure of notices of copyright infringement and arguments of noninfringement plays out.” Levy blogged about the issue back in October after similar phony copyright complaints forced YouTube to remove Obama and McCain campaigns that used excerpts from news shows.

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Another strike against the Digital Millenium Copyright Act! The anonymous owner of a real estate gripe site had had the site’s page removed by his ISP when the subject of the gripes — the real estate agency — complained it violated the agency’s copyright. No so, says the judge. The Cleveland Plain Dealer‘s Patrick O’Donnell reports:

A Web site dedicated to criticizing a Lorain County home builder won a court battle last month to stay on the Internet. Just as significantly, the owner maintained his ability to run the Web site anonymously.

The home builder in question, Powermark Homes, Inc., took exception to the site Powermark Homes Alert and its url, Public Citizen attorney Greg Beck argued on behalf of the site’s owner (“John Doe” in court documents).

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