[Wheatfield]

That would be really strange.

So if I walk into a bar, knowing that a guy will re=arrange my face if I call his mother a whore, and I do so, and he rearranges my face, he doesn't get charged with assault?

If you walk into a bar, and sign a contract (terms of service) that says if you call some guy's mother a whore, he will rearrange your face and that you agree with this term of service, and you do, and he does, then no, you would probably have no claim.

The fact that I know my action will cause you to commit an illegal act excuses you from performing an illegal act?

by signing the waiver, you are declaring the act legal in your circumstance.

Personally I think the law should remove people from society, corporations included, wo either perform illegal acts, or manipulate the law so they can perform legal acts.

The corporate control of the legal system has reached new heights. Corporate rights are over the top, protection from the illegal actions are at an all time low. This is as corrupt as it gets.

It's funny how it's not OK to perform an illegal act, but it's OK to circumvent the law with a legal agreement. No legal agreement should be allowed to supersede the law. And it should be a crime to write such an agreement.

Same with nondisclosure agreements in safety cases. The public safety must be put before corporate well being. It should be illegal to write an agreement that enforces silence on issues related to public safety.

[FantasticMrFox]

Many TOS do not contain a severability clause which renders them invalid in the case that any part of the TOS is against the law (at least in Germany).

They usually even state the exact opposite, claiming that if any part of the TOS is or becomes invalid, the validity of the rest of the document remains unaffected by that. Which is a pointless statement to make, because it is wrong, and the rest of the document does become invalid

The people writing these probably know that these don't hold up in court, but put them in anyway to trick people who aren't aware of this.

[RGlasel]

Could someone modify FB's TOS to not waive their CMI rights, provide notice of this change to FB, and assuming FB let them continue to use service after some reasonable amount of time, have cause if/when FB stripped out the EXIF data from copywritten images?

No, both parties have to accept any revisions or addendums to a legal agreement. Which leads to my next point.

Terms of service that have not been fully explained to the satisfaction of the individual who agrees to them do not take away existing rights from that individual. Until Facebook pays posters for the rights to images posted and posters agree to accept payment, posters retain those copyrights, even if the terms of service they agreed to says that they have waived those rights. The value of copyright varies by jurisdiction and it may be that American photographers who sue Facebook for violating their copyright won't get much compensation and it may be that Facebook only violates those copyrights when a third party uses a posted image without attribution, but what terms of service mean in cases where an unwitnessed mouse click substitutes for a signature and there is no reasonable expectation that the person "signing" the TOS is fully aware of all the implications of those terms, is diddly squat. Terms of service can't take away rights from an unwilling and/or uninformed victim. Of course it will cost victims time and money to recover damages from perpetrators with much greater resources, so a degree of injustice remains.

Now for my mea culpa: I'm not familiar with enough of the details of this case in Germany to know whether the paragraph above that I posted is relevant or not. I could read the linked article, but that's no guarantee the writer of the article understood the relevant issues or not. If someone tries to profit by violating unenforceable agreements like terms of service, the situation changes because that attempt to profit from contravening an agreement implies an understanding of that agreement. Which, in my opinion, is the real purpose of asinine terms of service such as Facebook's and iTunes, to prevent competitors from exploiting the services Facebook and Apple provide for free. Joe and Jane Public are just stooges.

[rawr]

The last time I checked, flickr stripped the Exif data from the reduced-size versions generated from the uploaded image.
From my point of view they should at least keep the IPTC data...

From what I can tell, the reduced size versions generated by flickr have EXIF stripped. But the EXIF in the full or 'original' size images users submit remains intact - EXIF, IPTC, even XMP metadata.

[FantasticMrFox]

Huh? Although there is some variation among jurisdictions, severability/savings clauses are routinely upheld pretty much everywhere in the U.S., as long as they aren't written unconscionably.

I was talking about Germany. And a quick research also showed me, that I was mostly wrong Severability clauses do work in German laws, except for some exceptions.

[Lowell Goudge]

The basic idea behind this rule is IMHO pretty much common sense.
I am not a lawyer (no legal advice, you are encouraged to do your own research or ask a professional), but here are some words that should help to understand:
A TOS that consists of several pages of legalese is not something that Joe Q. Public will comprehend, so local (German) law overrules clauses that are not compliant.
Many TOS do not contain a severability clause which renders them invalid in the case that any part of the TOS is against the law (at least in Germany).

Your last line is not relevant to any TOS of a service, they can state what ever they want inthe TOS but if it violates other written laws, it is deemed invalid and the contract is void.

One of the fundamental principles of contract law as established under British common law, and applicable as a minimum within the UK, Canada, the United States, and any where else that civil law and contracts have evolved from UK common law, is that the contract must not allow or force others to break the law.

[Clou]

IANAL, but anyway:

Many TOS do not contain a severability clause which renders them invalid in the case that any part of the TOS is against the law (at least in Germany).

Your last line is not relevant to any TOS of a service, they can state what ever they want inthe TOS but if it violates other written laws, it is deemed invalid and the contract is void.

Well, the severability clause is there to ensure that the remaining part the contract stays valid if one or more clauses violate the law. This is common practice in the Anglo-Saxon and the German legal system.

One of the fundamental principles of contract law as established under British common law, and applicable as a minimum within the UK, Canada, the United States, and any where else that civil law and contracts have evolved from UK common law, is that the contract must not allow or force others to break the law.

I was addressing German Law - there are quite a few differences to the Anglo-Saxon legal system - still, there are more common points in this particular case.

Do you have examples where a TOS was successfully invalidated in UK, Canada or the US?

[Lowell Goudge]

Do you have examples where a TOS was successfully invalidated in UK, Canada or the US?

I can't cite a specific case but there are many examples in Canada specifically where product warranty ,M for example is by many manufacturers set to a value (duration) less than is reasonable, which have been found non binding in Canada. It. Fact the worst thing to do is actually send I the warranty card.

Just ask yourself,M for example why in Canada,M the Pentax warranty is 2 years, where in the us it is one.

[Clou]

I can't cite a specific case but there are many examples in Canada specifically where product warranty ,M for example is by many manufacturers set to a value (duration) less than is reasonable, which have been found non binding in Canada. It. Fact the worst thing to do is actually send I the warranty card.

Just ask yourself,M for example why in Canada,M the Pentax warranty is 2 years, where in the us it is one.

Warranty is a different kettle of fish. For the US you might look at the Businessperson's Guide to Federal Warranty Law, for Canada this appears to depend on the province, the European Union has a regulation based on laws defining minimum warranties per product type.
The issue with FB has to do with a clickable TOS - not with a purchase of a physical product or a service. With FB you are not paying for the service so you are the product

---------- Post added 01-25-17 at 09:19 PM ----------

There have been some cases where US courts have signalled their willingness to "blue pencil" portions of TOS that have been found to be unconscionable while letting the rest of the TOS stand, particularly for "shrinkwrap/clickwrap" and other similar licenses where the consumer is already a subscriber or isn't able to agree to the terms until the item/service is already in hand. There was a notable one regarding the Second Life's TOS a few years back that was settled after the court settled the preliminary question that its arbitration clause in its TOS was unenforceable and could be disregarded.

The bottom line is that in the U.S., you are much more likely to get only the offending portion of a TOS thrown out than to get the entire thing declared unenforceable.

Thanks. So the severity clause is not always required? It would be nice to see some of the poorly written TOS nixed to put more pressure on the rest to do it correctly.
This goes for any place on this planet.

[photoptimist]

No, both parties have to accept any revisions or addendums to a legal agreement. Which leads to my next point.

Terms of service that have not been fully explained to the satisfaction of the individual who agrees to them do not take away existing rights from that individual. Until Facebook pays posters for the rights to images posted and posters agree to accept payment, posters retain those copyrights, even if the terms of service they agreed to says that they have waived those rights. The value of copyright varies by jurisdiction and it may be that American photographers who sue Facebook for violating their copyright won't get much compensation and it may be that Facebook only violates those copyrights when a third party uses a posted image without attribution, but what terms of service mean in cases where an unwitnessed mouse click substitutes for a signature and there is no reasonable expectation that the person "signing" the TOS is fully aware of all the implications of those terms, is diddly squat. Terms of service can't take away rights from an unwilling and/or uninformed victim. Of course it will cost victims time and money to recover damages from perpetrators with much greater resources, so a degree of injustice remains.

Now for my mea culpa: I'm not familiar with enough of the details of this case in Germany to know whether the paragraph above that I posted is relevant or not. I could read the linked article, but that's no guarantee the writer of the article understood the relevant issues or not. If someone tries to profit by violating unenforceable agreements like terms of service, the situation changes because that attempt to profit from contravening an agreement implies an understanding of that agreement. Which, in my opinion, is the real purpose of asinine terms of service such as Facebook's and iTunes, to prevent competitors from exploiting the services Facebook and Apple provide for free. Joe and Jane Public are just stooges.

Although what you writes sounds sensible and preferable, it's not legally true.

Unfortunately, the legal presumption is that clicking "OK" implies understanding and accepting the TOS otherwise the person would not have clicked. And, unfortunately, the burden of understanding the TOS lies with the consumer, not the company.

A further issue is that copyright includes the right to grant others the right to make copies. I've not read Facebook's TOS but would expect it to includes explicit terms that permit copying of any content posted to Facebook. Facebook isn't taking away it's users' copyrights, the users are exercising their right to voluntarily give it to them.

[RGlasel]

unfortunately, the burden of understanding the TOS lies with the consumer, not the company.

Until the provider of "free" services attempts to use casually accepted terms of service to obtain something tangible of value from their customers this will be a theoretical argument. Users have limited ability to get compensation from the service provider because they didn't pay anything for it (although there are examples where consumers have successfully sued retailers because "free" incentives didn't live up to their perceived value) and there is little tangible benefit to be gained from these services, so even if compensation was awarded to users, it wouldn't amount to much. From the perspective of any service provider in any industry, it is very difficult to enforce anything agreed to by their customers, other than payment for the service provided. Typically, the only recourse a service provider has to deal with customers who fail to live up to their commitments is to quit providing service to that customer and obtaining payment becomes much more difficult at that point. Ignorance is an excuse for individuals dealing with corporate entities (governments are the exception that proves the rule). Talk to anyone in the business of renting out items of value.

[RGlasel]

This includes Fteja v. Facebook, a federal case which upheld the enforceability of a forum selection clause in the Facebook TOS.

Facebook disabled Fteja's user account without notice. The complaint against Facebook was that " being denied access to the world's largest social networking site caused Fteja 'harm in all his personal relationships and the ability to communicate....'" On January 24th, 2012, a District Court in New York granted Facebook's motion to transfer the case to the Northern District of California, which is where Mr. Fteja's complaint has lingered ever since. As far as I can tell, the undeniable right of Americans (or citizens of any other free society) to hold membership in social media networks is yet to be tested in a meaningful way by jurisprudence.