A lot of online communities seem to function as commons because people can interact and share things in an open way, and without any market transactions apparently taking place. But a great many social networking sites are in fact corporate platforms designed to make money. Users must agree to a long and complicated license – the “terms-of-service,” or TOS, contract – that the host corporation requires that all users accept.
Such “contracts of adhesion” as the classic legal tool for corporations to unilaterally impose their own terms for a seller/buyer relationship, while maintaining the free-market fiction that consumers make their own sovereign, informed choices among competing sellers. Under a Web TOS, all you have to do is hastily click an “I Agree” button, and you have formally accepted pages of impenetrable but potentially consequential legalese. If you use Facebook, eBay, Flickr, Twitter, YouTube or countless other social networking sites, you are legally bound by the TOS, which the company may change at a moment’s notice.
As the number of users on a website grows, it often becomes irresistible for the host company to alter the terms of service contract to enhance its legal rights. A few months ago, for example, Facebook altered its TOS to allow it to own any users’ content on the site if the user terminated his or her account. They even arrogated to themselves the right to sublicense your content to others. So any of your photos or text that you uploaded as a user would belong to Facebook (or to an advertiser that might wish to use it in an ad, under a sublicense).
When word of this obscure change in the TOS became known in the blogosphere, thousands of Facebook users went nuts – and Facebook management had a major PR/brand image problem on its hands. They eventually backed off, but not before the point had been made: a TOS can contain some one-sided, socially unacceptable terms without many people really knowing it.
Which is why we should all welcome a great innovation just launched by the good folks at Electronic Frontier Foundation. To fight “TOS creep” and other predatory legal stipulations that crafty tech lawyers may devise, EFF has launched a new website, TOSBack, “the terms-of-service” tracker. The site keeps track of any changes made to a TOS on 44 sites (and counting).
EFF does not add any interpretive commentary to the TOS licenses that it catalogs, but it does offer a convenient highlighting function for deleted text and new license terms. Eliminated text in the old license is highlighted in blue, and new text – displayed as part of the new license, in a parallel column – is highlighted in yellow.
Years ago, Professor Larry Lessig likened the predatory arrangements on certain websites to “digital sharecropping.” Users can cultivate the land, but the almighty owner gets to own and control the harvest. TOSBack is a fantastic tool and clearinghouse for empowering web users. If the owner of an open web platform gets too greedy or conniving, the site helps web users — especially the more vigilant, legally minded ones — to monitor TOS and alert everyone else if a new legal provision is problematic.
Of course, it would be better if the commoners owned and managed their own Web platforms, but that’s another proposition entirely. At least TOSBack offers commoners a convenient new way to recognize and assert their interests. This is no small thing. An exodus of users from a misbehaving website with a nasty TOS could destroy the company’s revenue model and tarnish its brand reputation: the consumer revolution of the 1960s has come to fruition.