Terms and Conditions. Just those three words probably give you the creeps. Show of hands: how many people have actually read all 40+ pages of the iTunes Store Terms and Conditions? Yeah, I’m the only one holding up a hand. Which makes it a bit hard to type this blog post so I hope you don’t mind if I put it down.
Ah, better, thanks. We’ve talked before about why those terms and conditions can be so long and difficult to read but at the end of the day I do think most of them can be read without falling asleep. This doesn’t prevent people from misinterpreting them, and it certainly doesn’t prevent the vast majority of people from just clicking through without trying to understand what they’re signing up for. But those terms matter.
Take, for example, the recent change Craigslist has made to the terms on the page where you submit your ad. At the bottom of the page, just above the button to continue, is this one line:
Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.
There’s an interesting history about why Craigslist made its change which can be found over at LifeHacker (h/t to my friend @MisterHub for pointing out the story to me). I find this change interesting for two reasons. First, the change violates the overall site terms; and second, it shows some of the problems dealing with ownership and licensing of social media content.
You automatically grant and assign to CL, and you represent and warrant that you have the right to grant and assign to CL, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable (through multiple tiers), worldwide license to copy, perform, display, distribute, prepare derivative works from (including, without limitation, incorporating into other works) and otherwise use any content that you post. You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).
Just reading that first sentence would surprise most people. When you post an ad on Craigslist you let them copy it anywhere. They can perform it (a dramatic reading, perhaps). They can even make a derivative work out of it–granted, your ad selling an old iPod for $50 isn’t likely to be easily converted into a movie script, but there have been many creative Craigslist postings over the year (they even compile them in the Best of Craigslist section). And Craigslist has those rights everywhere, forever, and there’s nothing you can do about it.
But now there’s more because in the short line on the posting page they added an important word: exclusive. Craigslist uses it twice in the short summary. The second use isn’t that big a deal–they say Craigslist is the only one who can sue someone for using it improperly (this way they’ll have standing if they decide to sue the company or similar entities mentioned in the LifeHacker story) and is essentially the same thing as in the general terms.
However, the first use of exclusive is huge and it comes down to the issue of who owns content on social media. Every once in a while you’ll come across a story on how Facebook wants to own your photos or Twitter wants to own your tweets or Foursquare wants to own your location or something silly like that. The fact is virtually no social platform wants to own your content. Because with ownership comes risk–risk that you infringed someone’s copyright, risk that you’re defaming someone, risk that you’re advocating violence against someone or something, etc. And the owner bears the brunt of that risk. So why own the content when you can just get a license to do whatever you want with it?
That’s what a license is after all, permission to do something without owning it. You don’t buy software, you receive a license to use it and make limited copies of it. You don’t buy a movie at the movie theater, you buy a ticket which is a license to watch the movie that one time. You don’t buy music, you obtain a license to listen to it (this one gets thornier if you start talking about physical CDs and such, so we’ll just leave it there).
It’s perfectly natural for Craigslist to want a broad license to your content. After all, you’re posting it there so that Craigslist can then present it to a lot of people in various ways. What is interesting and dangerous is the exclusive license they seem to now want. Let’s leave aside the issue of whether it’s enforceable given the conflict with the main terms–assume it is an exclusive license. What does that mean?
Technically, it means you can’t let anyone else use that content. So you can’t copy your ad and post it on another platform because, in all likelihood, you would be granting that other platform a license to the content. But now you can’t give someone else a license because you promised Craigslist that you’d be exclusive to them. You’re now content-monogamous and your content isn’t allowed to see other platforms without violating your contract. You’re signing up for a content prenup.
There are some ways you could get around this limitation:
- Don’t license a copy to other platforms but just give it to them. You don’t care, it’s an ad. But it would be difficult to negotiate individual terms with a platform and you’re unlikely to find one whose terms say you’re giving them the content.
- Just make a different ad for Craigslist as everyone else. Annoying, but at least you’re following this new term.
But if you don’t want to go around the limitation, you could just go through it and risk violating Craigslist terms. Meaning you post the ad on Craigslist and then you copy it onto another platform. The worst they could do is take your content down if you post it on Craigslist and a few other sites. I suppose they have a potential claim to sue you for breach of contract by not giving them the exclusive license, but their damages are minimal to none and, let’s face it, the public backlash over such a suit would kill them.
In fact, just the backlash over this language may do some damage. LifeHacker is already taking up the cause, urging its readers to contact Craigslist about the change. Perhaps more users and sites will take up the cause as well. More likely is that people won’t care unless Craigslist starts taking down posts that appear on other sites or starts sending some nastygrams to users over the issue.
This situation does illustrate how the terms and conditions of a site matter. Before today you probably never thought that copying and pasting an ad onto Craigslist and another site could put you at risk of a breach of contract lawsuit. It does. It’s a low risk, but it’s a risk. So, if you’re feeling particularly rebellious today, you can Copy/Paste your way into potential exposure. Enjoy.