for any legal (or just knowledgable) folks on my flists

[kaigou]

[Site-name redacted since that's not the issue.]

I think I'm getting what they're saying, and I'm not sure I'm liking it, so maybe I'm missing something. What does the following mean, in real-world non-fancy terms? Or at least, what's your impression of what it (might) mean?

"By displaying or publishing ("posting") any Content, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials (collectively, "Content") on or through the Services, you hereby grant to [site], a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services. This license will terminate at the time you remove such Content from the Services. You represent and warrant that: (i) you own the Content posted by you on or through the Services or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the Services."

Comments

[law_nerd]

Legal person here -- but not a specialist in IP law (I teach it, but I don't *do* it), and this ain't any kind of advice, much less legal advice...

I'd read that to say:

If you put stuff you've created on our site we have the right to do anything we want with it, including -- if we can figure out how -- making money off it.

We can let other people use it too (how one becomes a sub-licensee isn't clear, it may be that all users of the service are sub-licensees and therefore can use each others content ... or it could require separate contracts.)

We have to stop if you take your stuff and go home. (That is, of course, if they make it possible to take your stuff ... some social networking sites make it next to impossible to get all the info off of an account and shut it down.)

If you put stuff that someone else created onto our site, and the someone else comes after us. It's all your fault (not ours) and you have to pay anything they can dig out of you.

---

Or, in other words, a quite typically nasty out of the box contract that the site owners like 'cause it gives everything to them ... even though chances are they've no idea what exactly to do with "everything" once it's there.

[kaigou]

Alrighty, then. That's what I thought I was reading, but some rational part of me said, no way! That's, just, ridiculous! On what planet does that work!? If I stored my stuff in a garage at your storage company, you don't get the right to play dress-up in my stored clothes or paw through my boxes of books, and you certainly don't get the right to rent those out (let alone amend them!)... Okay, not the best real-world analogy, but still. The notion of storing something on a server and this granting the hosting companies full rights (excuse me, above and beyond any everyday sense of "full rights") just boggles my mind.

Or we can just mark this up as another thing we can blame on Facebook, for getting away with it and thus leading others to thinking they can do the same.

[law_nerd]

Part of the problem with the common law system is that new things don't generally get new laws, or new forms of contract. Instead we look at what made sense when the law was being developed in the 1700's and 1800's and most issues involved sheep^*.

So if I let you pasture your sheep on my land, you could pay, or I could get some of the sheep, or some of their wool (with which I could do anything I wanted). If we had an agreement and you stopped paying, I'd eventually be entitled to *all* of your sheep. (And the storage company can sell, or play dress-up in, your stored stuff if you stop paying them.)

IP is not sheep. But hundreds of years of legal precedent regarding sheep tends to influence some of the dafter things people try to do with IP. Including: you can use our pasture, but then we want a right to some sheep ... oh, and since these aren't tangible sheep we can have the whole herd and eat it too ... so, really, we want all the rights to all your sheep content.

One of the things I'm most curious about is what they propose to do if you do remove your content. If that content has been: used, copied, modified, adapted, translated, publicly performed, publicly displayed, stored, reproduced, transmitted, and distributed ... how are they going to track down every vestige of it wherever it has been reproduced, and stored by an unlimited number of sub-licensees? So if they *can't* undo what has been done, once the license is terminated can the original content producer demand royalties for ongoing using, copying, etc.

---
^*Author freely admits to having some lingering ovinophobia thanks to having to read far too much old English caselaw on the way to her J.D.

[kaigou]

Sheep. I never would've thought, but it does make sense. Still. Sheep. I mean, sheep. I think there's dirt in my backyard that's smarter than the average sheep.

Snerks aside, that does make sense. I know at least that much from my time working for a lawyer, that precedent goes way back. I just didn't realize how much even the newest law must sometimes reach that far back.

As for the removing content? Well, if you go by Facebook's example, the answer is that they don't. Not only are they keeping it all, they won't even let you see what they've kept. Fortunately (if there is a bright lining in this), FB's international HQ is in Ireland, which just so happens to have passed a new law about online privacy and user's rights. Not sure how it'll roll out, but just reading the list of FB violations of that Irish law are enough to give any person with a reasonable expectation of privacy... a completely dashed set of expectation, and possibly also a case of the hives.

[branchandroot]

*nods* What s/he said. The general purpose to which that kind of clause is /put/ is for a social media site to, let us say, display your public content on their home page or Latest page, or use it in advertising their site. This does not make the actual verbiage any less appalling, or open to abuse of all sorts. But that's the most common application of it, which is what soothes a lot of people enough to not protest the /actual/ rights it hands over to the service too hard.

[kaigou]

I guess it'd be too much to ask, to have that outlined so simply: "if you set something as public, you're allowing us to post it on the service where other people can see it. if you set something as private, we'll still know what it is (because it's in our database) but we won't let anyone else see your information other than you."

[phoebe_zeitgeist]

More or less what everybody else said, and with that same This Is Not Legal Advice proviso.

The thing here is, some of your instinct that something rational had to be going on is right: giving a service a non-exclusive right to display, reproduce, and transmit information that you post is necessary for the service to work the way you want it to. And maybe there's a similar argument for the use, adapt, translate, kind of language: if you own copyright in something, at least in the U.S., you own all those ancillary rights, and maybe there's an argument that the ability to run something through, say, Google Translate means that a service has to ask for a nonexclusive right to adapt, translate (or at least display translations) and so forth to be safe. But this goes further than I'd be comfortable with, at least without more by way of explanation or limitation. To some extent I suppose it's probably self-policing -- if, for example, this hypothetical company decided to adapt your funny story about a client meeting into a play and put it on Broadway, you could cut them off at the knees by pulling your material off the service. That, I'm speculating, would mean they'd need to kill that Broadway production (because sure, they had the license to do it, sort of, when they started, but now the license has terminated), at great cost to themselves. So probably they wouldn't do things like that. Unless they were banking on not getting caught.

The other part is indemnification for posting of what turns out to be illegal content. This kind of clause at least used to be standard in mainstream publishing contracts, and possibly is standard on the Web as well, but if it isn't it would be nice to see that dialed back a little too.

[phoebe_zeitgeist]

Wait, this is for a server contract? I must have been reading too fast: I thought it was for a blogging site or something. Okay, suddenly this is looking a lot less reasonable, and a lot more like the company's lawyers just got lazy and stole the clauses from a blogging service. On the theory, no doubt, that overreaching violently couldn't hurt them.

[nagasvoice]

I don't think you can tell, from the information here, which it is. And the context of the service provided is important.
Hosting where people are parking original content (such as blogs or pix) may have TOS similar to this sometimes, if you compare Picasa or Flickr or Photobucket. That doesn't make it right or enforceable, when the hosting company is claiming all rights to that material. IMHO (not an attorney, not legal advice, disclaimers as with other folks commenting above) I see a blur going on there compared to TOS clauses for a social media site where people are grabbing pix of stars from commercial media that they really don't own the rights for, but nobody's seriously enforcing it.

[kaigou]

It's for one of the major bookmarking applications, so the only content I can see that'd be copyrighted by the user might be, I don't know, the specific tags they've chosen, and any notes they add. (I don't even think you could really copyright a tag selection, for that matter.) That's assuming the notes aren't just a copied paragraph from the story/article. Outside of notes and maybe some correspondence between users, what other content is anyone providing that's their own? Not much, that I can think of -- which makes this all the crazier.

[kaigou]

(see my reply to nagasvoice as well)

It's for one of the bookmarking apps.

Honestly, talk about CYA: if you're saving your own content, we can do whatever we like with it. But if it's not your content and you saved it and/or used it without permission (violating copyright), then it's not our problem and you're liable for everything. Thing is, they don't specify that it's "if you save your own content" only that whatever you save, they can do whatever with. Serious CYA, really, I guess to let them claim "oh, we didn't know that was copyrighted! we just figured this one person came up with four thousand different fanfiction works all on his own!" *eyeroll*

[phoebe_zeitgeist]

With the further caveat that I'm clueless about bookmarking services, I can only think two things: (1) that in the you're-the-product way you were discussing a few days ago, this service is looking to somehow make a product out of a user's selection of things to bookmark, though damned if I see how that would work; and (2) that this language sounds even more like the product of lawyers' fondness for models than it did earlier. And I had already suspected that it was a product of the lawyers using a model that didn't quite fit and then not troubling to customize it.

The models issue is something that pops up over and over in legal practice. For obvious reasons, it's much easier to draft a document by finding something that looks more or less like what you want to do and making whatever modifications are needed than it is to draft one from scratch. Drafting something de novo means that you have to think about every single bit of it, what issues need to be covered, how you're going to word them, what you might have left out the first seventeen times you thought about this, whether your language really does what you hoped it did for each paragraph, and on and on. It takes a long time, and it's expensive to do, so nobody does it unless they really have no choice.

So everyone goes looking for models, and a lot of the time they find things that are more or less right, or at least address some of the same issues as they think they need to address, but that aren't perfect matches to what they need to do. And they sit down to adapt them, borrowing language where it's possible, inserting extra provisions where they need something that isn't in the model, and so on. And then they look at the finished document, and see that there's language in the model that addresses issues that they don't necessarily have in their situation. If it's dead wrong, in ways that will cause a problem or look obviously stupid, they'll take that extra language out.

But the rest of the time? Everyone will leave it in. Because (a) why not?; and (b) maybe you're wrong about not really needing it, other people obviously thought they needed it, how sure are you that they're not right?; and (c) if you don't understand what it was doing there at all, you'd better not even think about taking it out because what if it's doing something really important that you missed?

And because this is the dynamic, the problem replicates itself, with increasing elaborations, with every single iteration. I don't have any actual knowledge of the circumstances of drafting here, obviously, so I can't be absolutely sure this is what happened. But I will say that it strikes me as highly, highly likely.

[kaigou]

Ayup, that's about how it works when you don't want to bother with legal advice (or the legal advice you bother with doesn't, in turn, want to bother with your stupid questions). REminds me of the time I almost signed a rental agreement, stopped, read the fine print, and realized it had to have been cobbled together from the first page of an apartment rental sheet and the second page of a video rental membership! I guess the landlord figured it was all rental stuff, right?

[phoebe_zeitgeist]

Or the legal advice you're bothering with doesn't want you to have heart failure, or to fire them for the bill they ran up with outside counsel, when you find out what it cost to get the dedicated attention to your questions.
A couple of hours of going over a model the lawyers found somewhere else maybe isn't too horrible at $400 an hour, but the time investment to either throw a specialist at it or make sure a not-quite-specialist is current on all issues affecting the industry, think through all the issues presented by your particular circumstances, write up a custom TOS, and then go over it with you and revise in light of your comments -- well that same $400 starts piling up into something that looks really nasty.

A lot of the time, at least in my experience, the lawyers would love to be bothered by your questions. It's what makes the law fun and interesting, when it is fun and interesting. They just don't want you to kill them.

Your almost-landlord, however, sounds like he was treating the law as a species of magical incantation. Wave a few pages around, say something in Latin; isn't that how it's supposed to work? What could go wrong? And where did all these dancing mops come from??

[kaigou]

There's protection against illegal content, which you can find in everything from, oh, online server contracts to car rentals to land purchases. (Which is rather ironic, considering that with RICO, it doesn't matter: if a car is used -- or even alleged to be used -- in the context of a crime, the car can be impounded, auctioned off, and there's not a damn thing you can do about it. Even if you're not convicted, and even if you're tried and found innocent!)

But that's not at all the same as "we can use your car because it's in our parking lot".

I mean, talk about cake (or sheep) and eating and having: if your stuff's legal, we get to use it, but if it's not, then we don't have anything to do with it & it's not our problem.

Riiiiiiiiight.