A couple of copyright flaps blew up while I was otherwise engaged in Dublin. The first was all about the new (now old again) Facebook Terms of Service – the ones by which Facebook attempted to claim ownership of everything that is posted on the site. They’ve now backed down on that, and are attempting to craft something that their lawyers approve of and won’t cause people to desert the site in droves.

I wasn’t too worried about that. It is the sort of thing that many companies are doing these days, and was probably unenforceable. If Facebook can lay claim to everything in RSS feeds that are syndicated on their site, then Google can also lay claim to everything syndicated through Google Reader, at which point the lawyers’ brains will explode.

But companies do come up with Terms of Service like that, because it is deemed much safer than not doing so. If you have a ToS that is all-encompassing then it won’t do you any harm (unless you piss off your customers), but if you don’t then you may let something valuable slip through your grasp. Nothing will actually happen until the ToS are tested in court. The same happens with Terms of Use for software packages. And, as some people were noting when the Kindle-reading-books row blew up, if book publishers were like the music industry they would try to make it illegal to read books aloud as that would be “piracy”.

Is this a problem? Well, only if it comes to court, or if it can’t. Earlier this month I blogged about the problems that Ben Goldacre was having with the anti-vaccination nutjobs who are trying to silence him. Law Clanger has a lot to say about that today, including the fact that Ben had to back down because he could not afford to go to court.

The same could apply to a ToS dispute. If the little guys can’t afford to contest the theft of their property by a big company, then the legality of the ToS becomes irrelevant, and the fact that big companies can make such sweeping claims becomes important.

And, sadly, it gets worse. As various people (the inevitable Cory Doctorow here) have been explaining over the past few days, a really obnoxious law has been passed in New Zealand. Basically this law requires ISPs to take your web site offline if a copyright owner complains that you have infringed their copyright. They do not have to prove that you have done so. Indeed, as far as I can make out the accusations don’t have to be true in any way. As long as a complaint is made, the ISP is legally required to take your site offline.

And that is why you will find a whole punch of people blacking out user pictures, blogs and so on in protest. More information is available from the Creative Freedom Foundation.