I certainly am sympathetic to your skepticism. I agree that Facebook still has much to do to become truly more open — but I think it's also important to realize that “openness” is largely in the eye of the beholder.

On the one hand, they desire to make the service more open for sharing — to make it easy for people to move their content in and out of the service. On the other, there's open source/web advocates that also want to make sure that the underlying protocols that Facebook uses are interoperable and non-proprietary. Two types of open — both meeting the definition.

Still, w/r/t to the legal bit, that's hard, since most law and terms of services are designed to protect one party over another — especially when Facebook has resources that I'm sure some people would love to have an excuse to sue to gain access to. Openness in business is also something that hasn't really been done that much before — at least in the consumer web. Facebook gets extra scrutiny because they must match their rhetoric with real behavior, but other web services are equally closed and have perhaps worse or more onerous terms of service by comparison.

This is new ground; I believe that whoever figures out this new landscape first will reap a great deal of benefits. The generation of folks working at Facebook seem young and naive enough to dispense with many of the previously “perceived” protections of the past and blaze into the future — but it's a tall order fraught with challenges and uncertainly. Indeed, time will tell, but I do think that we'll see Facebook make more overt progress in this regard in 2009 than many other of their competitors.