Most of the continuing saga of Facebook's updated terms of service (TOS) has focused on the implications for personal privacy and ownership of personal information and content. I have a different question: how many companies are considering the TOS implications when they use Facebook for marketing campaigns? Are they casually handing over rights to their intellectual property, too?
I group online TOS "agreements" with the shrink-wrap end-user license agreements (EULA) that come with commercial software. They may technically be contracts, but most customers don't read them and don't really agree to them. It's not really possible to read all the agreements that come our way, and in any case, they're not negotiable. When interesting or useful online services offer take-it-or-leave-it terms, most of us take it.
Usually, things work out. In real life—not the world described in TOS and EULA legalese—we are able to function because terms aren't enforced to the limit. Company statements, such as those coming from Facebook this week, tacitly acknowledge that rational management doesn't enforce every right that Legal tosses into license terms. So while it may be possible for Facebook to assert ownership of users' content, they're smart enough to realize that wouldn't be a good idea.
Yes, but...
Commercial contracts, though, should be different. Companies really shouldn't agree to unpleasant terms just because they're hard to read (you have professionals for that task, right?). If the standard TOS makes claims on company content that go too far, they should be negotiated. The question is, are companies really doing that, or are they clicking "accept" and moving along, just like most individual users?
I don't have the answers on this one. I suspect that big brands are negotiating real contracts with Facebook and others, while smaller companies accept the TOS. My parting thought for you is that if your company is getting into social media, your legal folks should pay attention to the terms. If something's not right, fix it before you start. If it can't be fixed—what other ideas were you working on?
Although my wife and I cross out publicity waivers in our child's permission forms, I am not a lawyer. Anything that looks like legal advice here is just my personal opinion.
