Facebook goes a stealing

IP Freely has been made aware (by his good friends over at The Rebel is Down) of a change to Facebook's EULA (End User Licence Agreement although they call it their Terms of Service it is essentially the same thing). The following passage is the most important:

"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 or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof."

Previous carnations of the EULA allowed users to effectively remove Facebook's rights by deleting their account (check out The Consumerist), but the passage dictating this is no longer there. Later on in the EULA is the following:

"The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other."

So basically if you upload anything onto Facebook then regardless of whether you leave the site and delete your account you give them licence to deal with it pretty much as they wish. Extremely unfair you may think? and for one I agree. However if you look at the EULA's of for example virtual world's then they often do the same for example:
“SOE shall exclusively own all now known or hereafter existing copyrights and all other intellectual property rights to all Submissions and Licensed Content of every kind and nature, in perpetuity, throughout the universe”

This was taken from the EULA of Sony's 'Everquest' (here). Also look at the following extract from the EULA for 'There' (check it out in full here):
“All materials you send to the Company, whether or not at our request, including, but not limited to, e-mail, postings, contest entries, Avatars, There Objects, creative suggestions, ideas, notes, drawings, concepts or other information (except any Developer Submissions as defined in the Developer Addendum) (collectively, “Submissions”), shall be deemed the property of Company and you hereby assign all of your rights, title and interest in and to such Submissions to There.com / Makena Technology Inc”

Contrast the above with that of Linden Lab's infamous 'Second Life':
“You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.”

Now we have now moved slightly away from the "privacy" point of view most people will look at in consideration of this change. But consider the intellectual property ramifications of this, for example what if you create some kind of picture or drawing and upload it on Facebook by virtue of their new EULA they have a licence to: "use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute". If you spent hours creating it and they profited from it you would be pretty peeved.

However (and more interestly) what about the opposite view i.e. what about if you rip something off and infringe someone's copyright, stick it up on Facebook, surely if Facebook themselves do any of the things that they have identified then they will be guilty of copyright infringement. One could envisage that should any claim arise then they would attempt to bring the user in as a part 20 defendant (i.e. say look ok we did it but it was his fault, him over there, not us!), with trade mark infringement there is the requirement of 'use in the course of business' the Facebook user wouldn't be doing so but Facebook might do....hence they could easily get sued. Again with copyright there are a number of 'fair use' provision such as education etc if your use was within this but then Facebook used it then they could easily be sued.

So this leaves Facebook surely in the position where yes they can use your stuff if you put it up there, but they'll be too scared to.

Afterthought: What about where your friend sends you a photo, he is the creator so he owns the copyright, he effectively licences you to use it but you cannot sub-licence it without the creators approval. Presumably then Facebook has infringed the creators copyright? (I'll look at this later, it probably says something in the EULA!).

"What do you think? Have Facebook gone too far? Do you think they risk IP infringement claims?"