Amidst the backlash against Facebook’s new terms of service, the company tries desperately to clarify that they never intended to claim ownership of its user’s content. It makes analogies to email, where a copy of a message would be kept even if the sender wished for it to be deleted.

But if you look a little closer, these arguments fall flat. First, retaining any and all rights to copy and employ content however it sees fit is tantamount to ownership. People intuitively get this. If I can’t say "delete it," or "never sell it," then I don’t truly own it.

Second, the email analogy is weak. Facebook could have carved out a provision to protect against users incorporating other user’s content, even beyond Fair Use. The trick is to get out of the way, not do a land grab. There’s been plenty of work on Creative Commons, for example, which Facebook could make the default licensing scheme. In that sense, there would be no issue of ownership, just how permissive are the granted rights to copy various content without the author’s explicit consent.

Moreover, the claim that my keeping a cached copy of your email means I implicitly have some rights over it is pure nonsense. I don’t suddenly get various copyrights because you send me an email any more than I obtain the copyright for a movie I downloaded and cached from Netflix. The owner copying it for you doesn’t mean the owner gives up the right to restrict anyone else from copying it. If Facebook’s argument held up, then I could "own" a piece of Facebook by simply keeping it in my browser cache.

What Facebook can and should do is very simple. Amend the ToS to add a clause confirming user’s explicit ownership of their personal information, period. That would seem to fit with their public (but not legally binding) comments to date. Facebook can then claim it should be held harmless for any unwanted copying of one user’s content by another — Creative Commons again would be the easiest way to do this. FB should not claim it can use or share the data however it sees fit, or it will continue to lose people’s trust.

Beyond this, Facebook can and should make it clear that users own their social networks too, their friend’s lists and even their activitiy logs, though this is a harder sell. But it’s easy to argue that this is first class data, just like any message you put on a wall. It’s all our data. We agree to let Facebook do interesting things with it. But that leash is only so long.

I’m reminded of the time someone stole my identity and set up a fake Facebook account with my name and picture, invited hundreds of Microsoft employees to "be my friend." After days of trying to get Facebook to take the con job down, I finally had some luck by asserting a copyright violation givenr the misappropriated photo of me. The copyright cops were the only people in the whole company with a mandate to fix problems within 24-48 hours. That should tell you something about the importance of copyright to Facebook’s bottom line.