So I'm feeling pretty cool. 3 weeks ago, when discussing unconscionability and Internet terms and conditions, I told my class go to the Facebook website (and heard one of the students tell her neighbor: "This is the best class ever!"). They discovered upon reading the site's terms and conditions 1)that Facebook claims a perpetual license on anything posted on a Facebook page, and 2) that Facebook can change the terms and conditions of its website at any time without notice. The terms said that the license would automatically expire if you removed the content.
Apparently, Facebook recently changed these terms, removing the automatic expiration, and prompting much consternation amongst users, and a response from founder/CEO/annoyingly-rich Mark Zuckerberg. Some legal analysis here.
Yup, cutting-edge contract law, that's what I teach.
Um, no, I still don't have an iPod.
Update: this NYT article quotes my friend, cyber-guru, and fellow Law Hoo Greg Lastowka.
Update 2: as fedgovernor reports in the comments, FB has backed down.
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1. Posted by fedgovernor on February 17, 2009 @ 12:39 | Permalink
It's not a contract.
A contract is negotiated by two parties ... not dictated by one. And, no contract can have as language the ability of one party to unilaterally change the contract at any time.
That's what you should teach them.
Teach them it's all just a joke, and that if Facebook starts pasting your high school yearbook to porn pictures and distributing them, you can still sue them.
2. Posted by kj on February 17, 2009 @ 16:26 | Permalink
How would a contracts scholar interpret the Facebook response asking for the trust of their users? To what extent should individuals trust the corporation?
3. Posted by fedgovernor on February 18, 2009 @ 2:47 | Permalink
Facebook: Trust us
Contracts Scholar: LMFAO!
CNN: Under fire from tens of thousands of users, the social networking site Facebook said early Wednesday it is reverting to its old policy on user information -- for now.
http://www.cnn.com/2009/TECH/02/18/facebook.reversal/index.html
Suddenly, it's not a contract. It's just a "policy."
4. Posted by Lady F on February 18, 2009 @ 22:37 | Permalink
KJ, I appreciate your question in seeking to know what ‘contract scholars’ would think of the Facebook terms, which is something I have thought about myself, because I am unable to decipher them. Despite what people like Fedgovernor, who are easily amused, think or chose to laugh at (I had to look up the significance of “LMFAO” and found it most unsavory….but I digress)…. it is the contract scholar who dedicate his or her knowledge to solving and/or anticipating problems way before they even arise. I think both of your questions would stimulate the interests of a true contract scholar.
Also, I lack a formal legal education, but I do know legally the term “contract” is much more inclusive as Fedgovernor declares.
“A contract is negotiated by two parties ... not dictated by one.”
Really? Could I please forward you basically every contract I have entered into in my life as evidence that while they were contracts, I had little to no say in the terms? Try using any popular search engine on the internet for the term “contracts of adhesion” or “standard form contracts.”
Now, to my particular comment, I am worried about the effect of Facebook and young children who idly waste away their minds on this site claiming they “social networking” when they are really in isolation and behind a plastic keyboard. Will possibly damaging terms of site affecting them when they post their often inappropriate pictures on the site? I might be wrong, but minors cannot legally contract, so if in fact Facebook holds their information and possibly uses it, could minors sue regardless of any terms?
5. Posted by Jake on February 19, 2009 @ 17:22 | Permalink
Anyone dumb enough to post their own photograph or other personal information on a site like Facebook deserves the consequences. Such persons may not regret the consequences. Cheers to them, but the whiners who remain have no call on the sympathy of the ever dwindling number of rational persons who inhabit this globe.
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