“At LinkedIn, we are committed to respecting what is yours,” says the narrator of the video titled “Who Owns Your Content? You know.” They continue: “So we’ll always ask for your permission before we use your content in ads, publications or other companies’ websites.”
This should go without saying. Our content may not be used in third-party advertisements without our knowledge or consent. Social media sites should not use the content we post for business reasons we did not intend.
However, from a legal perspective, social media sites have broad rights to use any information you provide. “You own your Content,” he promises Twitter Terms of Use, followed by a long paragraph granting Twitter rights to use, adapt, share and distribute your content worldwide. TikTok also claims an “unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide license” to your content. Instagram seeks not only a broad license for your content, but also permission to display your username, photo, likes and relationships in connection with third-party ads.
Social media sites like YouTube and TikTok can also, without breaking the law or their own terms of service, charge users for access to your video. Or show your video at their exclusive film festival. Or publish a book containing your status updates. Or set up an art gallery to display your photos. Imagine Twitter University, where users pay to access curated content from (no fee) experts. It could offer courses in art history or screenwriting or user interface design simply by collecting existing comments, links, videos and photos without user permission or compensation. Maybe you didn’t even know your content was included. And it would all be completely legal.
Social media companies can’t afford to alienate creators and business partners, so YouTube probably won’t be producing its own user-generated content film festival anytime soon. And Snapchat probably won’t make and sell music tracks that feature your voice. Although they could.
The main force keeping social media companies in check is market pressure—and markets are changing. When the risk-benefit calculation changes, and they can make money in new ways without losing too many users or sponsors, social media sites won’t need your permission. They already have it.
Law in general it does not favor “contracts of accession”, in which the stronger party sets the terms and the weaker side sticks to them. But contracts of adhesion are allowed in business-to-consumer transactions because businesses cannot be expected to negotiate with every customer. Buyers have two sources of leverage: their market power (they can walk away if they don’t like the deal) and consumer protection laws that prohibit deceptive or unfair business practices.
Social media companies, especially long-established ones with huge user bases like Facebook, are hard to give up. Users who have invested years in building networks and reams of content have too much to lose: memorials of life milestones, personal and professional contacts, archives of creative work with fan reactions. Facebook users have repeatedly threatened to boycott or #DeleteFacebook after the latest controversy, but the site’s user base continues to grow year after year.
With limited market power, social media users are left to rely on consumer protections against deceptive or unfair practices. These are intentionally vague terms, designed to accommodate changing markets in different industries. By definition, deceptive and unfair trade practices depend on judicial assessments of reasonableness and relative benefits. Both are subjective and context dependent.
