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Just when you thought it was safe to place photos on Facebook

After a number of privacy issues over the years, Facebook has repeatedly clarified that it thinks that user privacy is important to them.  Then in December, the possibility of Facebook selling our photos came up, and that seemed to get resolved by the following day:
Dec 18: Facebook to sell your photos: Social media giant claims it owns the rights to ALL your Instagram pictures
http://www.dailymail.co.uk/sciencetech/article-2249952/Facebook-sell-photos-Social-media-giant-claims-owns-rights-ALL-Instagram-pictures.html

Dec 19: Facebook’s Instagram Backtracks: 'It Is Not Our Intention to Sell Your Photos,' Says Co-Founder
http://finance.yahoo.com/blogs/daily-ticker/facebook-instagram-backtracks-not-intention-sell-photos-says-153656165.html

Facebook even created question on a Help page to insist that our concerns over their selling of our data is a myth: 
Common Myths About Facebook
https://www.facebook.com/help/369078253152594/
Does Facebook sell my information?
"No. You have control over how your information is shared. We don't share your personal information with people or services you don't want. We don't give advertisers access to your personal information. We don't sell any of your information to anyone and we never will."

What personal information is shared with sites that use social plugins?
"None of your information—your name, basic info, what you like, who your friends are, what they have liked, what they recommend—is shared with external sites you visit with a plugin. Because they have given Facebook this space on their sites, they don't receive or interact with the information that is contained or transmitted there. Similarly, no personal information about your actions is provided to advertisers on Facebook or on the other site."

So Facebook won't sell our data, including our photos.  Now it turns out that the terms Facebook seems to clearly commit to may not be passed on to creators of Facebook apps.  

Service lets you order prints of any Facebook photo
http://connect.dpreview.com/post/8088565723/photos-at-my-door-app-prints-of-any-facebook-photo

So Facebook may be quite happy to facilitate someone taking and selling your photos, even though you may have thought they insisted that it wouldn't happen. Where in the TOS does it reveal clearly that they're happy to have other commercial entities sell our photos? The reality of Facebook defaulting our photo privacy settings to "share with apps others use" strikes me as clearly contradicting the intentions expressed by Facebook and reinforced in their discussion of their TOS.

I mentioned this on Facebook, and a former 5 year Facebook employee dropped by to say that "it wasn't Facebook who's selling your photos."  Let's say I agreed to watch your home or apartment while you left the country for 3 or 4 weeks.  When you returned, you find that all your belongings had been sold.  I gave my cousin your key, and I backed up the truck so your belongings could be loaded into it.  Would it be an ample defense for me to say "I didn't steal your stuff, and I did watch it… get loaded into the truck"?  Of course not, I facilitated, was a party to, the act of taking it.

There's a simple solution, which Facebook could profit greatly from.  Photos and videos have value, just like music does.  Let photographers opt-in to a service which lets someone use their low res photo on a mug for one dollar, and give that dollar to the photographer.  It's basically like "an +iTunes  for photos".  iTunes licensing individual songs directly to consumers created a new niche for selling music, and it changed the music business while growing it overall.  A similar service for photos and videos might grow the market for images.

Facebook may have challenges implementing such a service at first, but +Google rewards Web site creators with its +Google AdSense/Adwords system, and it operates a market for Android applications to be sold which pays the creators of those apps, so they have existing payment systems which could be adapted to implement a consumer-facing image market.  Google has corporate value of "Do no evil" and a track record of a win-win financial relationships with content creators, while Facebook still seems willing to let our valuable content slip out their back door unnoticed.  

Photographers bring valuable content to these social media parties… who's going to best respect, even reward, the value that we bring?  My money is on Google.  

Embedded Link

Service lets you order prints of any Facebook photo
“Photos At My Door “allows anyone to browse their friends’ albums and create photo products.

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18 thoughts on “Just when you thought it was safe to place photos on Facebook”

  2. Brandi Jasmine
    Reply

    My money is on "no one" … Google et al will be happy to screw artists and photographers too if they can get away with it. This will have to be settled in the courts. I like your suggested solution though, I hope they heed it!

  13. Jeff Sullivan
    Reply

    Let'e review the recent history +Jeff Toxey and +Tom McGowan to see if Facebook (or by association Google) cares what we think of how they treat users and our photos…
    Facebook possibly selling our photos came up and seemed to be resolved on Dec 18 then 19, 2012:
    Dec 18: Facebook to sell your photos: Social media giant claims it owns the rights to ALL your Instagram pictures
    http://www.dailymail.co.uk/sciencetech/article-2249952/Facebook-sell-photos-Social-media-giant-claims-owns-rights-ALL-Instagram-pictures.html
    Dec 19: Facebook’s Instagram Backtracks: “It Is Not Our Intention to Sell Your Photos,” Says Co-Founder
    http://finance.yahoo.com/blogs/daily-ticker/facebook-instagram-backtracks-not-intention-sell-photos-says-153656165.html

    Facebook apparently thinks people will jump ship if they abuse users' privacy/data (at least in public statements).  Twitter had a similar public concern over photos, and I believe it too them only one day to respond in photographers' favor as well.

    So in the aftermath of the December debacle, if Facebook has "no intention"  of selling our photos, let's see what Facebook's Terms Of Service state today:
    "you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)"

    I read that as :
    _"you grant us… license to use… content… on or in connection with Facebook". _ 

    Of course I grant Facebook permission to use content on Facebook.  *Use OFF Facebook is not something that I have knowingly or willingly granted under these terms.*  I'm not an attorney specializing in contract law, but my understanding is that contracts are only valid to the extent that they are understood by both parties, so we can't assume that basic English goes out the window and doesn't apply.  In my (non-legal) opinion, use by third parties, for profit, without getting paid, is definitely not something clearly disclosed under these terms, and if it's not disclosed, how can it possibly be agreed to (and legally binding)?

    Facebook further clarifies and emphasizes that the public perception that they might sell our data is a "myth": 

    Common Myths About Facebook
    Facebook Help Center
    https://www.facebook.com/help/369078253152594/
    Does Facebook sell my information?
    "No. You have control over how your information is shared. We don't share your personal information with people or services you don't want. We don't give advertisers access to your personal information. We don't sell any of your information to anyone and we never will.
    What personal information is shared with sites that use social plugins?
    "None of your information—your name, basic info, what you like, who your friends are, what they have liked, what they recommend—is shared with external sites you visit with a plugin. Because they have given Facebook this space on their sites, they don't receive or interact with the information that is contained or transmitted there. Similarly, no personal information about your actions is provided to advertisers on Facebook or on the other site."

    So Facebook won't sell our data, including our photos. Where in there does it reveal that they're happy to have other commercial entities sell our photos?  Clearly they know that we're concerned about sale of our data, so where's the discussion of that here, and the link to where they've apparently enabled it by default?  

    What other data mining activity could be going on without our consent?  Even if I disable sharing my friend data for example, if my Facebook friends have that setting set to "share", apps will mine that data and know who I'm connected to no matter what I have that setting on.  So the illusion of control is clearly a farce in some specific cases.  

    Can that happen for photos?  Can they be sold based on my online friends' settings?  You bet.  There are many people who download and re-upload photos shared on social networks, including some incredibly prominent users.  Now those unauthorized uses can result in our photos being "licensed" and sold?

    So we're told that we can simply edit our settings to disable photo sharing to apps.  Here's the text accompanying the check boxes on Facebook:
    "People on Facebook who can see your info can bring it with them when they use apps. This makes their experience better and more social. Use the settings below to control the categories of information that people can bring with them when they use apps, games and websites."
    "If you don't want apps and websites to access other categories of information (like your friend list, gender or info you've made public), you can turn off all Platform apps. But remember, you will not be able to use any games or apps yourself."

    Do the check boxes enable or disable sharing?  It's unclear.

    I know that I tried to disable photo sharing and nearly everything else in that "Apps others use" setting +Lori Carey mentions above, just a few days ago when this came up.  I assume that I should, and did, uncheck the "photos" box.  Today it's checked.  I know that I didn't go back and re-check it.  Apparently I must have enabled a particular app within the last couple of days, and that changed my global setting for the entire site and for all apps.  Apparently there is no way to enable a particular authorization for a particular app?  That's news to me.  I do recall hand-selecting permission for a particular app recently, but it sure looked like I was custom-setting permissions for an individual app.  If I'm not mistaken on this, no matter how you set your global privacy settings, any individual app you authorize can flip the settings for all apps?  Some of those items checked I don't think I'd ever knowingly authorize, so how exactly did they get checked to share… to strangers' apps?  I'll uncheck them again… see if some app changes them back in the next few days.  What a nightmare.

    Some people have responded with a "blame the victim" approach, saying things like "So don't put photos online".  

    The victim or target of a crime or injustice is not the one responsible for it occurring. Facebook designs the way its app developers can access our data.  Facebook writes the legal terms app developers agree to when they access our data.  Facebook could easily put a "no commercial use without express user permission" clause in that legal agreement all API users agree to.  If I'm not mistaken, Flickr and Panoramio (Google) both do that.  So why doesn't Facebook?  Apparently they either failed to consider the existing models out there for sharing of, and commercial use of, user data, or they arrogantly and intentionally rejected that basic protection.

    Facebook could easily turn this into a win-win scenario and provide a mechanism to compensate photographers, just like musicians and bands receive a piece of the revenue when iTunes sells a song. Google has a revenue sharing model and payment system with webmasters via +Google AdSense/AdWords.  iTunes pays musicians (instead of sneaking their music out some back door) and that service is extremely profitable for Apple, so why wouldn't Facebook develop a similar revenue stream for all involved parties here?  That sort of model already exists for licensing music for soundtracks for online videos: http://rumblefish.com/ "The World's Largest Catalog for Social Media".  An image licensing service could compensate us a buck for simple, low res, single online uses (or videos up to a minute or two), and refer bigger commercial uses like print and TV use over to a stock photography firm like +Stocksy United or +PhotoShelter for a standard licensing model and market rate.

    To me the bottom line is this: 
    1. If Facebook defaults our photo privacy settings to "share with apps others use", we didn't have the opportunity to decline that sharing.  Even if the default is to not share, and we overrode it, the language around that feature, that check box, in no way discloses the net effect.    
    2. The TOS do not clearly state (as I read them) that my content will be used off-site by others, and they do not clearly state that they may be used by other entities for profit without my knowledge or compensation.  In fact, Facebook's help page and their public reactions to photo sales concerns in the past both seem to directly contradict that possibility, influencing how users will interpret the TOS. 
    3. From the standpoint of a user of other networks for 8-9 years, Facebook's apparent policy (not what they say in English on their Help page, but what they apparently actually do) flies in the face of how other networks have handled the third party commercial use issue.  They've broken the model which enables trust.
    4. How the check boxes work is not entirely clear.  Are they checked to enable sharing, or do we check what we want to protect?  The user interface is poor and Facebook QA should have caught that.
    5. Apparently authorizing a single app can result in a lot of those check boxes being changed!  Presenting them as global security settings is highly misleading if they can be changed elsewhere.  I sure don't recall any act since setting them a few days ago which informed me that I was changing global account settings back to sharing photos (I would not knowingly do that).  I may trust some apps; I certainly don't trust them all.  I need to be able to authorize an app or two, while disabling all others, and I need to be able to easily see which are enabled or disabled.
    6. Let's be clear: Facebook DOES profit from this behavior.  They attract apps and services which would mine our data or sell our valuable content, and in return some of those services (like the mug printing app) help attract traffic to their site.  Traffic drives Facebook ad sales and other revenue.  "We don't sell your photos" is no defense while your service thrives by being loose with our data or content.  Simply saying that someone else manages the final point of sale is no excuse for failing to better protect users.
    7. This seriously ups the ante in cases of copyright infringement.  Uses which used to be someone simply naively re-uploading our photos on their account can now result in those users "licensing" our photos for sale.  
    8. The Digital Millennium Copyright Act (DMCA) requires that Facebook take down infringing copies, but only when the owner of the content reports it.  A lot of infringement goes un-addressed simply because the owner doesn't find it or doesn't have time to deal with it.  Now that Facebook has dramatically increased the likely impact of copyright infringement, it should implement stronger measures to address it.  Facebook can and should facilitate cleaning up the issue and allow reporting by third parties: let my fans enter the image URL, identify me, and have that report routed to me so I can (per the DMCA guidelines) confirm that yes, it's an infringing copy of my work.  Hiding behind the DMCA to refuse to accept third party reports of copyright infringement is inexcusable, while you could easily route that report to the reported copyright owner on Facebook for confirmation, instead of simply reject it.  To me your behavior implies that you don't want copyright infringement to get fully reported and addressed.
    9. This sort of conflict of interest between Facebook and their users is entirely unnecessary.  That service can sell mugs with our photos on them because those photos have value.  Facebook could put in place legal terms to prevent commercial use without express permission.  If or when permission is granted, Facebook can put in place technical features which facilitate pricing and payment for that use.  Facebook can profit directly if it likes via a share in the fee, or it can continue to profit indirectly through site popularity and adds (but without it being a win-lose at photographers' expense).

    Facebook doesn't need to be holding the smoking gun to be responsible for what happens on, or through, their site.  IF Facebook cares about our privacy and protection (including our digital assets), there's clearly a whole lot more they can do to demonstrate that.

    Hopefully these are some of the things being worked out much more elegantly in the +Google+ API  and the associated terms! 
    ————————

    Thanks +Doug Thompson, I definitely want the concerns and possible solutions to be noticed by the right people at Google.  That's why I copied this post to +Bradley Horowitz  +Vic Gundotra and others.  I've been advocating a "social media to micro stock to stock photography" function to Google since discussions with Google employees at +Thomas Hawk's #DV2011 photowalk in November 2011 and again at the G+/Panoramio Yosemite Photowalk  #Yosemitewalk2012 in May 2012.  

    The revenue would certainly mean nothing to Google, but many photographers are where the music business was 10 years ago… developing new revenue sources is critically important.  What is important to Google in this functionality?  Consider +Euro Maestro's Who's Who list of people on Google Plus who have the highest engagement on their posts, photographers are all over the top 100 (out of 21.5 million profiles indexed):
    http://www.circlecount.com/euromaestrowhoswho/ 
    Take a look at +Alycia Miller… what a success story, only 8100 circle contacts and ranked #70 in community response to her posts!
    http://www.circlecount.com/euromaestrowhoswho/?name=Alycia+Miller

    Given the interaction levels generated by photos, owning the hearts and minds of photographers is strategic to social media sites.  It behooves +Google to be on the right side of the copyright, app sharing of photo content, and revenue fences.  Google doesn't even need to develop the technology for implementing a mechanism to allow apps to license, price, and pay for, a use.  PhotoShelter could offer an interface to their pricing technology, provided that Google could offer an AdSense account or other wallet to deposit the revenue share to.  Or perhaps +SmugMug would do it, although the key feature is having a strong pricing model like Cradoc fotoQuote (http://www.cradocfotosoftware.com/).  Hopefully Google+ has business development folks on staff, actively pursuing these types of solutions to fill holes in G+ functionality.

  14. Tom McGowan
    Reply

    +Jeff Sullivan this is a lot to take in I like your idea of the revenue sharing similar to I tunes I don't like the way FB says they don't sell our data but let anyone else sell it seems wrong to me. There TOS and just accessing the settings and clearly understanding them is very poor on FB Thank you for sharing all this with me I have been enlightened. What would be the next step to get FB to notice this transgression or even get them to care. I have decided from now on my postings to FB will be small low res with a large watermark. Again thank you for sharing and your hard work in researching this 🙂

  15. Euro Maestro
    Reply

    +Jeff Sullivan Excellent post. When I first wrote about this problem with Instagram https://plus.google.com/u/0/107040353898400532534/posts/ioY5iziyc81 
    many had said that I was being an alarmist. The post had more than 680 000 views and so was clearly an issue that resonated with people. Rather than being an alarmist I was reacting to what was the clear language of the new TOS.  This was clearly an issue for photographers as well as the general public. After much public outcry Instagram tried to suggest that there was a "misunderstanding" and that a correct would be forthcoming.  However, Facebook has a long history of not being transparent and Facebook has even admitted to deceptive practices as part of its settlement agreement with the FTC which I wrote about in a separate post.  

    As far as the my who's who list goes, you are quite correct that photographers have a prominent role in it and driving engagement on Google Plus.  I'm interested in having some conversations with Google about the issues you addressed here for photographers.  I'm also interested in creating a who's who list for photographers and would certainly appreciate any help that you might be able to give in identifying photographers at the top of the who's who list. 
    If you have a chance to review http://www.circlecount.com/euromaestrowhoswho/ 
    sometime in the next couple of weeks that would be great. 

    I'm very curious to what other photographers think about the issues that you raised.  +Tom Anderson +Trey Ratcliff  +Thomas Hawk  +Robert Scoble +Rinus Bakker

  16. Jeff Sullivan
    Reply

    +Tom McGowan  I assume that if either Facebook or Google gets this right, the other will follow.  Selling photos isn't a core competency for either Facebook or Google, so they'll probably pass filling the gap off to their alliance/business development staff (or hire some).

    To help raise visibility and escalate the solution I had this post email 30 Facebook employees who joined G+ when it was in beta.  (If they're not still watching developments here, receiving notifications from those account, they're probably not the right people to notify.)  I haven't warmed up to Facebook yet, exactly because of the types of issues I outline here, but I may contact someone who can give me some contacts over there.  If they don't address this or otherwise respond shortly, the press will probably escalate the issue, which seemed to move Facebook in December.  A journalist was asking around this morning to gather information for an article.

  17. Tom McGowan
    Reply

    +Jeff Sullivan I think I know who the journalist is I like her we are friends here I look forward to her article I hope it works out in our favor I am just a little guy but still don't want my art taken without receiving compensation. I like G+ a lot  the open learning atmosphere I have found here has helped me in a huge way. Everyone I have met here has been open and helpful the social aspect is great too. I really don't get that on FB and I have been there much longer. Thanks again for sharing this I have again learned a lot 🙂

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