Tag Archives: Terms

The Tyranny Of Terms: How Zillow Is Overreaching

“Never go full Corinthian.”

The blog McMansion Hell (if the link isn’t working, read on to find out why) is dedicated to pointing out the architectural problems with houses commonly called McMansions.  Kate Wagner, an architecture critic, started the blog some time ago but recently received some mainstream press coverage in the form of a Washington Post video on her work and prominent inclusion in an article about McMansions.  Her blog included pictures of McMansions with annotations of what made the house ugly in her eyes, pointing out the various common flaws inherent to McMansions.

Shortly after the video and article started making the rounds on social media, Zillow sent the following letter to Ms. Wagner:

Ms. Wagner is currently in the process of moving her website from Tumblr, the original host, to a new host which may be why the link isn’t working if you’re reading this shortly after I wrote it.  And the good news is that Ms. Wagner was able to obtain legal representation in this fight (the EFF), because this is a fight worth having.  While we’ve seen instances of social media platforms wrongly accused of overreaching with their terms, here is an example of a platform wrongly asserting rights that don’t belong to it.

Leaving aside the fair use argument that Ms. Wagner is providing commentary and criticism on these photos, which this Mashable article effectively summarizes, the biggest concern I have is Zillow’s letter itself and how it interprets its own terms of service.

Zillow’s biggest complaint is that Ms. Wagner admits to gathering these images from Zillow, a well-known website and app that provides house listings.  But Zillow does not own the copyright to these images–they expressly said so in their letter as they attempt to address any potential fair use argument (although that’s not their issue to address because they don’t own the photos).

Instead, Zillow is alleging that Ms. Wagner’s act of copying photos that are on the Zillow website violated their terms.  That’s what the case, if there is a case (and I highly doubt Zillow will continue to pursue this through judgment), is all about and it all depends on some rather broad readings of their own terms.

Here, for example, is one section of Zillow’s terms they claim Ms. Wagner violated:

You agree otherwise not to reproduce, modify, distribute, display or otherwise provide access to, create derivative works from, decompile, disassemble or reverse engineer any portion of the Services.

These clauses are common on social media platforms and refer to the platform itself.  The buttons, the interactive features, all of the bits and pieces that make a functional platform are certainly right and proper for a platform to protect.  But when you create a platform that hosts content, the content you’re hosting doesn’t become a part of your platform.  This concept is what has allowed platforms to benefit from Safe Harbor provisions in copyright laws, for example–they conceptually draw barriers between a platform and the content so the platform doesn’t become an infringer.

It’s somewhat bizarre to see a platform destroy the barrier between content and functionality in one of its arguments.  For Zillow to argue that the pictures they host are now part of their services is to ignore the ownership and proper use of the content itself, not to mention opening themselves to much greater exposure.  If Zillow uses this clause to assert intellectual property rights in images posted by users, does that mean they are also subject to lawsuits for infringing content posted by their users?  What if I copy a famous series of house interiors published in Architectural Digest and post those as a listing on Zillow?  Should the rightful owner of those photos sue me or Zillow?

Zillow also references a provision in their terms that prevent the copying of images in their listings.  They didn’t cite the specific language, but let me do so:

Except as expressly stated herein and without limitation, you agree that you will not, nor will you permit or encourage any third party to, reproduce, publicly display, or otherwise make accessible on or through any other Web site, application, or service any reviews, ratings, and/or profile information about real estate, lending, or other professionals, underlying images of or information about real estate listings, or other data or content available through the Services.

Wow, that’s a mouthful, right?  This is exactly the kind of term that makes most people’s eyes gloss over.

That clause has a lot of prohibitions in there, and yes it does include a prohibition about copying the images available, but there are two kinds of problems with this term.  First, it’s a backdoor attempt to assert copyright protection without owning the copyright.  Copyright holders get to decide when an image can be copied, not one of their customers.  Copyright law allows the owner of the photographer to restrict how an image can be used and here Zillow is attempting to take those rights without informing the copyright holder.  Quite to the contrary, when you upload photos to Zillow you give the platform a broad license to use the pictures, but you aren’t assigning to Zillow your rights to enforce or protect that photograph.

So if Zillow doesn’t have the right to prevent this copying in copyright law, does it have some kind of right to restrict how the copying is done on its own website?  That’s possible, except that a user like Ms. Wagner who copies a photo from Zillow doesn’t use Zillow to make the copy.  She uses her web browser or other software to copy the image that was already transmitted to her computer.  Zillow is either taking over the rights of a copyright holder or is attempting to insert themselves into the terms of third party software they didn’t write.  Either way, this is a stretch.  This clause is designed to prevent someone from scraping Zillow’s website to set up a competing product–and that kind of activity shouldn’t be allowed but it’s a far cry from what Ms. Wagner was doing.

Also, taking this clause as Zillow interprets it against Ms. Wagner, Zillow would also have a potential case against everyone who has ever posted a link to a Zillow listing on Facebook or Twitter or other social media platform, as those links frequently pull associated images.  Does Zillow really want to go down that road?

Beyond the technical arguments presented in Zillow’s second reason why Ms. Wagner violated their terms, they also present a third reason that connects with the second.  This third reason is that Ms. Wagner’s activity harms Zillow or its suppliers.  And yes, they absolutely have that term:

You agree not to use the Services in any way that is unlawful, or harms Zillow Group, its service providers, suppliers or any other user.

But the spirit of Zillow’s argument here isn’t the kind that most courts will find persuasive.   The activity of viewing house listings and commenting on them happens, oh, EVERY DAY on Zillow.  And off Zillow.  Heck, without that kind of activity being permitted then the TV show House Hunters wouldn’t exist at all and I know several people who don’t want to live in a world without House Hunters.  Posts liks Ms. Wagner’s blog don’t harm Zillow or the listing themselves.  Do they think someone is interested in buying a multi-million dollar house but not if someone posted a snarky comment about it online?

It seems like Zillow was deeply upset that someone was using their website for anything but buying a house, and while I can understand that I can’t exactly sympathize.  So long as a social media activity isn’t actually harming you, you leave it alone.  Attempting to stifle the conversation only results in the Streisand Effect, as we’re seeing in full effect right now.  Ms. Wagner’s blog had some interest among architecture fans and some mainstream interest after the WaPo article.

But that interest is NOTHING like the interest her blog is going to have now that Zillow has sent its nasty gram.  If Zillow was truly interested in shutting down this kind of commentary based on their overly broad reading of their own terms, they have horribly miscalculated.

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Filed under CopyFUD, Copyright, Fair Use, Social Content, Terms and Conditions

The Great Facebook Legalization

I know what you’re thinking. “Did I click 5 Likes or 6 to win those headphones?” We have all your data. So you gotta ask yourself one question: “Do I feel lucky?” Well, do ya, punk?

We’ve all done it. Browsing your Facebook feed a picture pops up. Maybe it’s from a page you like. Maybe a friend shared it with you. Maybe it was a promoted post. But you saw it and you did it.

You clicked Like so you could win something.

The prize didn’t matter. Bejeweled Blitz coins. A coupon for free sushi. Sunglasses. Cruise discounts. Books. Art. You probably didn’t win but you figured it was easy enough to enter.

What you didn’t realize was that you were helping commit a crime.

Okay, not a full on crime. Rather, you were assisting in the violation of Facebook’s terms and conditions. Don’t worry, you didn’t do anything wrong. The brand that ran the contest did though.

For many years Facebook required promotions (contest and sweepstakes) to be run through Facebook applications. You were not allowed to use Facebook functionality to enter. That means “Like to enter” or “Share to enter” or “Post a photo to enter” or “Comment to enter” were all violations of Facebook’s terms. If Facebook found out about them, they shut it down–but these contests/sweepstakes were too easy to set up and Facebook doesn’t have a dedicated police force to seek out bad promos.

And we’ve all entered them. Many may have been small companies running a contest. Sometimes they were scam pages looking to pull data from fans (when you Like a page that page can pull a lot of data from your profile). Every so often you would see a major brand run a contest that violated the terms as well. Pepsi did that a few times and they got pulled down. Scams typically got pulled eventually or if they received enough traffic. Small companies mostly got away with it.

I used to guess why Facebook had this restriction. Maybe because apps had better privacy controls than page Likes. Maybe it was some legacy tech issue. Doesn’t matter now that Facebook has changed the terms to allow these promotions to take place.

There is still one remaining restriction brands should know about. Facebook is concerned about promotions that lead to inaccurate photo tagging. For example, promotions that use a photo of a product and encourage users to tag themselves or others in the photo (even though those users are not in the photo) are not allowed.

Which means those sweepstakes will still go on and they’ll still be unauthorized. Perhaps Facebook will try and crack down on these more than the past, knowing that they have permitted more activities so they will try and crack down on the one category they are trying to restrict. Or perhaps enforcement will be unchanged and you’ll see plenty of these promotions populate your Facebook feed.

But now, before you enter, you’ll know that the sweepstakes is unauthorized. Whether that makes it more or less appealing to you is up to you. Facebook doesn’t judge.

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Filed under Facebook, Social Marketing, Social Measurement, Social Platforms, Terms and Conditions

The New Instagram Terms Will Try To Sell You Bacon (And Why You Probably Don’t Care)

wwb

A short story about the worldwide bacon shortage for only $2! I’m in!

Instagram’s new terms of services are a more plausible reason for the world ending than the Mayan calendar.  Or at least you might think that’s true if you use Instagram and read all the tweets and blog posts talking about how the changed terms could spell the end of the service (Fox News), how they are a virtual suicide note for the platform (Gawker),  or how they are possibly raising concern among users (Hey!! How did that somewhat reasonable headline get posted?  C’mon CBS, get with the program!).

Those of you familiar with the thorough and methodical analysis that most blogs and Twitter users perform on terms of service and privacy statements may be shocked to know that the majority of commentary is blowing the issue out of proportion.  That’s not to say that changes are happening and that you may not like it, but for the majority of social network users here’s the kicker: you’ve been seeing it for months and haven’t realized it.  And, happily for us all, I get to show you how this is true with everyone’s favorite internet breakfast meat.

First, let’s review the key changes to Instagram’s terms of service.  There are two main provisions that the Interwebz point to with fiery hatred and prophesies of doom: using your data for ads and not clearly marking ads.

Here’s the new Rights section 2 in the updated terms of service:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

Instagram is giving itself the right to use your content to generate advertising revenue.  For some reason people find this section incredibly offensive.  I find that amusing since the current Instagram terms already grant Instagram these rights.  Since these links probably won’t work after Instagram switches the terms, here’s the current language in sections 1 and 2 of the Proprietary Rights in Content on Instagram.

1. Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.

2. Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

While the exact language is different, reading those two sections gives Instagram the same rights as the new terms.  The new terms do a better job at communicating the usage, I think.  And the new terms actually provide more limits on what Instagram can do with your content.

So if you’re concerned about Instagram using your content to make money I have two responses.  First, how did you think they were going to make money?  Second, why weren’t you concerned before?

But that’s just the first big change that has unleashed the fury of the fuzzy filtered.  The second change that is the Worst. Thing. Ever. (today, anyway) is Rights section 3:

You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

“WHAT WHAT WHAT?!?!” you tweet with the righteous fury of the recently caffeinated.  Showing us ads and not telling us they’re ads or how they’re ads, that’s just…icky!

You may be right (but lay off the caps lock, mmkay?) but if you use Facebook (and I’ve heard a few people do) then you’ve probably already been seeing these ads-that-aren’t-clearly-marked-as-ads for a while.  The majority of changes to Instagram’s terms seem to bring them in line with Facebook’s terms, this is just one of them.  That shouldn’t surprise anyone–if you buy something for $1 billion you may make a few changes.  But what may surprise people is that Facebook has been doing this kind of activity for a while.

I first noticed it in October when Facebook started letting users pay $7 to promote their posts.  Being the social media geek I am, and having a few friends who are also social media geeks (you know who you are), I saw some people actually pay to try this out.  I thought it was amusing, but I did not participate.  Then I saw some other posts show up as promoted that struck me as odd–a friend who posted how he wanted these sweet Star Wars cuff links (he actually wanted the Millenium Falcon but those are sold out).  I understand wanting cuff links that can do the Kessel run in less than 12 parsecs, but paying $7 to tell people that?  Seemed odd.

Then the posts hit closer to home.  A few weeks ago my friend Curtis Edmonds and I published on the Kindle platform a short story we’d written called World War B.  It’s an oral history of what happened when the world ran out of bacon.  Oh, it’s fiction.  Didn’t mean to panic you.  It’s only $2 and we’re giving all the proceeds to local food banks and makes a great electronic stocking stuffer and oh, sorry, back to the law stuff.

We posted links telling people about the story since we enjoyed writing it and figured others would enjoy reading it (especially at such a bargain price that–SLAP–sorry, I just hit myself for going back into marketing mode).  A few of our friends shared the link as well.  That was nice of them.  Then a few days later, I saw one of the posts again.  But this time it was “Sponsored.”

Promotededit

This struck me as odd.  Why would a friend pay $7 to promote a link to arguably the funniest short story about a worldwide bacon shortage ever written?  Then I saw another one.  And another.  And it hit me–Facebook is doing what Pinterest did long ago.  Back when Pinterest was first exploding they would modify links to commercial websites so that they would use a Pinterest affiliate account.  At the time I called it brilliant yet creepy (since it wasn’t disclosed).  I think the same thing here, it’s a smart way to make money but also a bit odd in how it’s done and how it’s disclosed.  They are taking posts made by your friends and Sponsoring them.  Perhaps they earn an affiliate fee, or perhaps they have better deals with the seller (they are Facebook, after all).  Either way, they are taking existing content and turning it into an ad–exactly what the terms allow them to do.

Whether this runs afoul of any FTC guidelines about disclosures or advertising also needs to be addressed.  It’s one thing for Facebook and Instagram to give themselves the rights to do so with your content, but their terms won’t help them if they’re breaking the law.  For now the Instagram activities are hypothetical and Facebook Sponsored posts haven’t received too much attention.  But if the programs expand and morph into something new, there may be more scrutiny from authorities.

In the meantime, if you like sending square pictures that look like they were taken in the 1970s but then you add tilt shifting to show it was made in the 2010s, then keep using Instagram.  And if you don’t mind giant social networks providing you free hours of usage in exchange for using some of your data to make some money, then keep using Facebook.  If either is a problem then you can stop.  But know that these changes aren’t brand new and you’ve probably never been hurt by them, so you may want to calm down and see what happens.

Of course, “Users calmly approach new terms of service” won’t get you to click through.

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Filed under Consumer Protection, CopyFUD, Copyright, Facebook, FTC Endorsement Guidelines, Instagram, Laws, Social Content, Social Marketing, Terms and Conditions

How I Cut An Apple Terms of Service 62% While Keeping All The Legal Stuff

We’ve talked about the problem with terms and conditions a few times already.  And I’ve even discussed some recent efforts to summarize those terms such as TOS;DR.  I still don’t think the current attempts at a solution (providing short summaries or visual cues) are very good.

I think the solution is fairly simple: lawyers need to write better terms and conditions.

From a lawyer’s perspective there are two important goals for a site’s terms and conditions: how well they defend the company against a lawsuit and how enforceable those terms and conditions will be.  I think, however, there should be a third factor that lawyers should factor into the terms and conditions they draft: do the terms help foster a community?  An incredibly detailed terms and conditions may defend a company against lawsuits that exist today or can be imagined in the future and several levels of user acknowledgement (must read, multiple acceptance checkboxes, a text area to type I TOTALLY AGREE WITH EVERY TERM IN THIS BINDING CONTRACT, etc.) may ensure the terms will be upheld by any court in the land.  But will people read it?  Will users like the hoops you’ve forced them to jump through?  Will they even sign up?

There’s an easier solution: cut to the chase.  Be open and honest about what you’re going to do and state it simply.  You may still lose some people who just want to click through, but you will have a far better argument that you were presenting your terms in clear language that the user could understand.  And for those that do read your document you’ve started building a relationship that may help your platform.

Let’s use an example to illustrate.  Apple has released the latest version of iOS but even if you didn’t upgrade your iDevice’s operating system you may have encountered some new terms and conditions this past week.  One of them is Game Center.  If you play any games on iOS that use Game Center you’ll know that this is Apple’s service that keeps track of high scores or individual achievements within a game.  You can then compare that with your friends that you have connected with on Game Center.  Several games also allow multiplayer games via Game Center.

Game Center updated its terms the same day as iOS 6 so the first time you used a game that had a Game Center connection you were prompted to review and accept the terms.  I’m guessing most people blindly did so.  I read them, but that’s what I do.  It’s a document that has 3,289 words.  Bear in mind these are not the terms and conditions for the operating system or iTunes or even the App Store.  This is not the Apple privacy policy.  These are just the terms for the service that some of your applications use to share high scores and track achievements.

I read this document and instantly thought this is a perfect example for how to do terms better.  So I set about rewriting it.  I cut it from the original 3,289 words down to 1,253 words.  That’s a 62% reduction while keeping all the legal topics intact.  Here’s how I did it.

First, just so we have a basis for comparison, here’s the word cloud of the original terms.

Can you find the words “Game Center?” After all, that’s what these terms cover.  No?  Center is about the S in Service.  Game is over the far right.  Their size shows how rarely they are used.

I think these terms are understandable, but tedious.  And these are terms for a gaming service!

Let’s change that.

Here’s how the original starts:

Game Center
TERMS OF SERVICE

GAME CENTER
THE LEGAL AGREEMENT (“AGREEMENT”) SET OUT BELOW GOVERNS YOUR USE OF THE GAME CENTER SERVICE. IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE FOLLOWING TERMS. BY CLICKING “AGREE,” YOU ARE AGREEING THAT THESE TERMS WILL APPLY IF YOU CHOOSE TO ACCESS OR USE THE SERVICE. IF YOU ARE UNDER THE AGE OF MAJORITY, YOU SHOULD REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND IT.

Apple Inc. is the provider of the Game Center service (the “Service”), which permits you to engage in game related activities, including, but not limited to, participation in leader boards, multi-player games, and tracking achievements. The Service may not be available in all areas. Use of the Service requires compatible devices, Internet access, and certain software (fees may apply); may require periodic updates; and may be affected by the performance of these factors.

To use the Service, you cannot be a person barred from receiving the Service under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the Service. By accepting this Agreement, you represent that you understand and agree to the foregoing.

Fairly standard opening for a long legal agreement like this.  But basically they’re trying to cover the following points: this is an agreement that you must agree to for you to use the service; if you’re a minor you need to have an adult sign it; what Game Center does; what you need for Game Center; and that you are not barred from the service (for whatever reason, a sort of legal catch-all).  So how about we use the following instead:

Game Center
TERMS OF SERVICE

GAME CENTER
HEY YOU!  BEFORE YOU USE GAME CENTER YOU NEED TO REVIEW THESE TERMS AND CONDITIONS.  WE’LL KEEP IT BRIEF, BUT THIS IS IMPORTANT BECAUSE IT’S A LEGAL AGREEMENT.  IF YOU ARE UNDER 18 THEN YOUR PARENTS OR GUARDIANS NEED TO ACCEPT IT.  WE’RE GOING TO STOP YELLING NOW, OKAY?

Game Center provides leader boards, multi-player game functionality, and achievement tracking for applications on supported devices.  We think it’s awesome.  It requires Internet access (which probably costs money), software that uses the service (which also may cost money), and may need to be updated from time to time.  Game Center performance can be impacted by all of these things.

To use Game Center you need to agree to this document and there cannot be a legal reason preventing you from using the service (such as a law or court order saying you can’t use something as awesome as Game Center).

Yes, I kept the all caps in the new version because courts like it when you make text stand out, but I used it to start setting the tone.  I’ve cut that section from 204 words to 151.  Don’t worry, we’ll make more headway in later sections.  Next for the original terms:

YOUR ACCOUNT

As a registered user of the Service, you may establish an account (“Account”) in accordance with the Usage Rules, below. Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify Apple of any security breach of your Account. Apple shall not be responsible for any losses arising out of the unauthorized use of your Account.

You agree to provide accurate and complete information when you register with, and as you use, the Service, and you agree to update your registration data to keep it accurate and complete. You agree that Apple may store and use your registration data to maintain your Account. You may not create an account for anyone other than yourself without that person’s permission.

This part isn’t too long but it can be made a bit friendlier.  It also includes the bizarre statement to not reveal Account information to others–that’s bizarre because that would include your username which you have to tell other people if you’re going to connect with them.  I’ve replaced this with the following:

YOUR ACCOUNT

Once you make an account with Game Center, keep it secure.  If someone gets access to your account, let us know.  We’ll try and help you but we aren’t responsible for someone else using your account.  On that note, you can’t make an account for someone else unless they let you.  That’s true in other places besides Game Center too.

We will store and use your registration data to maintain the account, so be sure to keep it up to date.  And don’t lie in your account information.  Because lying is cheating and cheaters never win in the long run.

Next up is the very long Usage Rules.  I’ve pasted the entire section here but skip to the end for my summary.

USAGE RULES

You agree to use the Service in compliance with these usage rules. Apple reserves the right to modify the usage rules at any time.

You are authorized to use the Service only for personal, noncommercial use.

You agree not to, or attempt or assist another person to, violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with the Service.

You agree that you will NOT use the Service to:

a. upload, download, post, email, transmit, store or otherwise make available any content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;

b. stalk, harass, threaten or harm another;

c. if you are an adult, request personal or other information from a minor (any person under the age of 18 or such other age as local law defines as a minor) who is not personally known to you, including but not limited to any of the following: full name or last name, home address, zip/postal code, telephone number, picture, email address, or the names of the minor’s school, church, athletic team or friends;

d. pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person (including celebrities), entity, another Service participant, an Apple employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity, (Apple reserves the right to reject or block any nickname which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person’s name or identity);

e. engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;

f. post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements;

g. forge any TCP-IP packet header or any part of the header information in an email or a news group posting, or otherwise put information in a header designed to mislead recipients as to the origin of any content transmitted through the Service (“spoofing”);

h. upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere with or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;

i. interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);

j. plan or engage in any illegal activity; and/or gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities;

k. cheat or otherwise modify the Service or the game experience to effect an advantage for one player over another.

This is a nice list of things you cannot do on Game Center, but there’s two sections that matter.  I’ve made them bold so you can see them (they aren’t bold in the original).  So after you’ve read this really long list you’re left with two big items: Apple can change these rules at any time and you can’t do anything objectionable.  Objectionable is just another way of saying things Apple doesn’t like.  So even if you avoid doing the things on this list they may find it violates the usage rules.  In that case, let’s be honest about it.

USAGE RULES

You can use Game Center for your personal, non-commercial use.  And there’s a lot you can do on Game Center.  But you cannot do any of the following:

  • Anything illegal (that includes breaking intellectual property laws)
  • Pretend to be someone else
  • Stalk or harass another player or try to get personal information from a minor you don’t know
  • Anything that could interfere with Game Center (including cheating and any attempts to reverse-engineer Game Center functions)
  • Any other activities not contributing to the Game Center community

This new version keeps the same broad swaths of prohibits activity and the spirit of the original usage rules but cuts a lot of text as well.  The original Usage Rules section was 525 words.  My version is 87 words.  Let’s move on to Privacy.

PRIVACY

The Service is subject to Apple’s Privacy Policy at http://www.apple.com/privacy. As set out in the Privacy Policy, when you use the Service, such as inviting other users to join the Service, participating in leader boards, enabling invitations or multiplayer functionality, or displaying status messages, the personal information you share is visible to other users and can be read, collected, or used by them. You are responsible for the personal information you choose to submit in these instances. When playing a game that supports multiplayer functionality, other users accessing the Service from within the same game on the same Wi-Fi network, local area network or within range of Bluetooth will be able to see that you are nearby, and see your nickname and photo, or full profile if you have a friend relationship with such user. If you do not want to be visible to other users nearby, you must adjust the settings on your device by launching the Game Center app, tapping Account, tapping View Account, and sliding the Game Invites switch “off”; or on your Mac, by launching the Game Center application, tapping Account, and unchecking “Allow friends to invite you to play games”. If you list your name or other personal information in a status message, that information is public. If you choose to have your public profile set to “on”, other users of the Service can see your full profile, including your full name, your activity (such as the games you have played and when you played them), your scores, and your achievements, and you can be recommended as a friend to other users. If you choose to have your public profile set to “off”, only users with whom you have established a friend relationship can see your full profile, and you will not be recommended to others; only your nickname and photo will be visible to users who are not friends. The full name associated with your Apple ID will also be shared with those users to whom you send, or from whom you accept, a friend request, such as in the Friends list, the Friends leaderboards, and the pending friends requests lists; and we may recommend games that you have played to your friends. If you prefer not to share your full name or profile with friends, you should remove that friend by tapping the “Unfriend” button at the bottom of that friend’s screen in Game Center.

If you wish to stop sharing information with other users and the Service, see http://www.apple.com/support/.

Some aspects of the Service are not available to children under 13, such as features that allow users to disclose personally identifiable information. Please enable parental controls to restrict access to content as appropriate.

Apple has a separate privacy policy which is linked here and then the rest of this section is actually a good description of what is being shared and how to disable it.  But it seems odd to have a how-to section in the middle of terms and conditions–this is even stranger coming from Apple, a company who prides itself on usability design.  I can’t imagine any usability guidelines that say a good place for teaching people how to change privacy settings is in the middle of terms and conditions.  So let’s cut this down to the necessary elements:

PRIVACY

Apple has a Privacy Policy at http://www.apple.com/privacy that applies here.  If you are under 13 then you can’t access some features of Game Center and we encourage all parents to use parental controls to set appropriate limits for their children.

When you use Game Center you send out information about yourself which may include your username, photo, or other items.  If you want to modify what you share or stop sharing information altogether, check the Account section of the Game Center application.  If you need additional help then please visit us at http://www.apple.com/support/.

This new section puts the focus back on the application–since if that’s hard to control what information you share I’m not sure how the original section helps.  If the application helps people, great.  If not, point them to a more robust source of information.  But terms and conditions are not a good place for an instruction manual.  And we cut the original 452 words down to 94.

After the original Privacy section comes four sections that I think can be combined into one.  Here are the original terms, but feel free to skip to the end for a summary and a new version.

SUBMISSIONS TO THE SERVICE

The Service may offer interactive features that allow you to submit materials (including links to third-party content) on areas of the Service accessible and viewable by the public. You agree that any use by you of such features, including any materials submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable or in poor taste. You also agree that you have obtained all necessary rights and licenses to make such submissions. You agree to provide accurate and complete information in connection with your submission of any materials on the Service. You hereby grant Apple a worldwide, royalty-free, non-exclusive license to use such materials as part of the Service or in providing or marketing the Service, without any compensation or obligation to you. Apple reserves the right to not post or publish any materials and to remove or edit any material, at any time in its sole discretion without notice or liability.

Apple has the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Agreement, and to take any action that Apple in its sole discretion deems appropriate, including, without limitation, termination hereunder or under our Copyright Policy (http://www.apple.com/legal/copyright.html).

THIRD-PARTY MATERIALS

Certain content, and services available via the Service may include materials from third parties. Apple may provide links to third-party web sites as a convenience to you. You agree that Apple is not responsible for examining or evaluating the content or accuracy and Apple does not warrant and will not have any liability or responsibility for any third-party materials or web sites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Apple is not in any way responsible for any such use by you.

OBJECTIONABLE MATERIAL

You understand that by using the Service, you may encounter material that you may deem to be offensive, indecent, or objectionable, which content may or may not be identified as having explicit material. Nevertheless, you agree to use the Service at your sole risk and Apple shall have no liability to you for material that may be found to be offensive, indecent, or objectionable. Ratings and descriptions are provided for convenience, and you agree that Apple does not guarantee their accuracy.

INTELLECTUAL PROPERTY

You agree that the Service, including but not limited to graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Service, contains proprietary information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with this Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.

Notwithstanding any other provision of this Agreement, Apple and its licensors reserve the right to change, suspend, remove, or disable access to any products, content, or other materials comprising a part of the Service at any time without notice. In no event will Apple be liable for making these changes. Apple may also impose limits on the use of or access to certain features or portions of the Service, in any case and without notice or liability.

All copyrights in and to the Service (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by Apple and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.

Apple, the Apple logo, and other Apple trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of Apple Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.

Did your eyes glaze over?  Yeah, that was painful for me too.  The first three sections deal with content on Game Center–it’s a bit different from the Usage Rules since that’s about activity and this is about what is actually posted.  The fourth section covers Intellectual Property generally but has some overlap with those first three sections.  So here’s where I propose a major change and combining these four sections into one:

CONTENT

There’s a lot of content available from Game Center including reviews and product information and achievements and bacon (kidding, but that would be awesome).  You must only post content to Game Center that you have the right to use and where you give us a free, worldwide, perpetual license to use that content in any way we choose in providing Game Center functionality or marketing Game Center.

When you see content on Game Center you should know that it may have been provided by someone other than Apple.  We may review this content but we might not, so we can’t say if the content is accurate and you cannot hold us responsible for anything related to that content.  You cannot use content that someone else posted on Game Center as your own without their permission (and that includes all of Apple’s intellectual property such as our graphics, audio clips, video clips, and other protected elements).  And if you see someone else doing that with your content then contact us according to the terms of our Copyright Policy at http://www.apple.com/legal/copyright.html.

Game Center is a big place so you may come across some content you find objectionable.  Your best option is to just move along but if you want to contact us about it we may take a look as well.  If we see something that we decide is objectionable or not in the best interests of the Game Center community, we have sole discretion to take it down.

OH BOY HERE COMES THE ALL CAPS AGAIN.  SORRY, BUT WE WANT YOU TO TAKE THIS SERIOUSLY BECAUSE WE TAKE INTELLECTUAL PROPERTY SERIOUSLY.  YOU CAN ONLY USE GAME CENTER SOFTWARE AND SERVICES AS PERMITTED IN THIS AGREEMENT.  IF YOU DO ANYTHING ELSE WITH IT WE MAY SUE YOU FOR VIOLATING OUR INTELLECTUAL PROPERTY RIGHTS.  SERIOUSLY, WE’VE DONE IT BEFORE AND WE GOT A BILLION DOLLARS.

Here I’ve cut out a lot of specific examples with broader statements in the interest of keeping the terms short and understandable.  Here we’ve gone from four sections and 831 words into one section with 313 words.

Next up, comes a few more sections that I think can be combined.  The original:

TERMINATION

If you fail, or Apple suspects that you have failed, to comply with any of the provisions of this Agreement, Apple, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account; and/or (ii) terminate the license to the Service; and/or (iii) preclude access to the Service (or any part thereof).

Apple reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and Apple will not be liable to you or to any third party should it exercise such rights.

DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION

APPLE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME APPLE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.

YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY APPLE HEREIN) PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

IN NO CASE SHALL APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OR INABILITY TO USE THE SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, APPLE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

APPLE SHALL USE REASONABLE EFFORTS TO PROTECT MATERIALS OR INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND APPLE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

APPLE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND APPLE DISCLAIMS ANY LIABILITY RELATING THERETO.

WAIVER AND INDEMNITY

BY USING THE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF APPLE’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN, RESULTING FROM, OR CONTEMPLATED BY THIS AGREEMENT.

These sections cover some broad topics WITH A LOT OF CAPS (again, because some courts require that).  But all these topics deal with some specific lawsuits so I think they can be addressed in one section.  My new version:

THINGS FOR WHICH YOU CANNOT SUE US

If you violate this agreement we’re totally cutting you off from Game Center.  Serves you right and you can’t sue us for that.  We may also change or end Game Center at some time; if we do we won’t provide notice and you cannot sue us about that either.

CAPS LOCK LOOKED LONELY SO WE’RE GOING ALL CAPS AGAIN.  WE DO NOT WARRANT, GUARANTEE, OR PROMISE THAT GAME CENTER WILL BE ERROR-FREE, UNINTERRUPTED, OR HACK-PROOF.  GAME CENTER IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND WE MAKE NO IMPLIED OR EXPRESS WARRANTIES OF ANY KIND REGARDING YOUR USE OF GAME CENTER OR THE INFORMATION YOU PROVIDE TO GAME CENTER.  WE’LL MAKE REASONABLE EFFORTS TO PROTECT YOUR DATA AND KEEP GAME CENTER RUNNING, BUT WE CAN’T PROMISE ANYTHING BEYOND THAT.  SO YOU CAN’T SUE US FOR ANY GAME CENTER WARRANTIES EITHER.

APPLE’S (AND WE MEAN ANYONE CONNECTED WITH OR TO APPLE) LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT OF THE LAW.  IN SOME JURISDICTIONS THIS MEANS YOU CANNOT SUE US FOR ANY DAMAGES (DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, AND ANYTHING ELSE YOU CAN THINK OF).  IN OTHER JURISDICTIONS THE MAXIMUM LIMITATIONS SHALL BE APPLIED IN APPLE’S FAVOR. SO EVEN IF YOU SUE US YOU MAY GET NOTHING.

YOU ALSO AGREE THAT YOU CANNOT SUE US IF YOU VIOLATE THIS AGREEMENT AND YOU CANNOT SUE US FOR THE ACTIONS WE TAKE TO INVESTIGATE IF YOU HAVE VIOLATED THIS AGREEMENT.  AND IF WE GET SUED OVER SOMETHING YOU DID, YOU MUST INDEMNIFY US AND HOLD APPLE HARMLESS FOR ALL RELATED CLAIMS.

Yes, that’s a lot of screaming, but those are some big waivers by the user so it’s worth pointing them out.  Still, I’ve managed to cut the original 636 words down to 267.

Home stretch now.  Here’s the end of the original:

CHANGES

Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof.

MISCELLANEOUS

This Agreement constitutes the entire agreement between you and Apple and governs your use of the Service, superseding any prior agreements between you and Apple regarding the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Apple’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. Apple will not be responsible for failures to fulfill any obligations due to causes beyond its control.

The Service is operated by Apple from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Service. All transactions on the Service are governed by California law, without giving effect to its conflict of law provisions. Your use of the Service may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Apple or relating in any way to your use of the Service resides in the courts of the State of California. Risk of loss and title for all electronically delivered transactions pass to the purchaser in California upon electronic transmission to the recipient. No Apple employee or agent has the authority to vary this Agreement.

Apple may send you notice with respect to the Service by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by a posting on the Service. Notices shall become effective immediately.

Apple reserves the right to take steps Apple believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that Apple has the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Apple believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Apple’s right to cooperate with any legal process relating to your use of the Service and/or products, and/or a third-party claim that your use of the Service and/or products is unlawful and/or infringes such third party’s rights).

Last updated: September 19, 2012

And here’s my take:

ALL THE REST

We may change this Agreement in the future.  We’ll let you know if we do and you can keep using the service to show you agree to the new terms.  This is the entire agreement between us for Game Center but there may be some other terms and conditions that apply when you use Game Center.

If any part of this Agreement is held invalid or unenforced by a court, the rest of the Agreement shall be construed in a way to uphold the intentions of the original Agreement.  If we decided not to pursue our rights under part of this Agreement we are not waiving any other rights.

We are not responsible for failing to fulfill any obligations for reasons outside our control.

Any lawsuits over this Agreement shall be filed in our home jurisdiction and shall be construed under California law.

If we need to send you a notice we’ll email your account or post something on Game Center.  It will be effective the moment we post it.

Finally, and thanks for sticking with us, if necessary Apple will take steps to verify your compliance with this Agreement.  That could include providing information to law enforcement or our investigators (which may include someone outside of Apple).  You agree to let us take any steps we deem reasonable and necessary.

Now go play some games.

Last updated: September 21, 2012

Not a huge cut here.  The original was 489 words and the new version is 234 words.  But it’s easier to read, I think.

So, all in we’ve cut a 3,289 word agreement down to 1,253.  That’s a 62% reduction.  It could be cut even more but doing so would require more strategic changes because substantive areas would be eliminated.  My exercise here was to keep all of the substance in the agreement but change how it was presented.  Here’s the word cloud for my version:

Can you find “Game Center” in my word cloud?

Although I inserted some content to make this more conversational, there’s more that could be done, but that would also add length and that wasn’t the goal here.

There’s certainly an argument that my language provides less coverage and even at 1,200+ words it may not be read.  But I hope this shows you a way that terms and conditions can be made in a friendlier way than they are today.

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Filed under Apple, Consumer Protection, Copyright, Privacy, Social Platforms, Terms and Conditions

TOS;DR: A Nice Idea But Misses The Point

This month the story broke about a new project called TOS;DR.  The abbreviation stands for Terms Of Service; Didn’t Read and it has a noble goal that misses the point.  Their mission statement is

“I have read and agree to the Terms is the biggest lie” on the web.  We aim to fix that.

I’ve blogged before about the difficulty in writing social media terms and conditions and it isn’t hard to see just how complicated these agreements have become.  It’s entirely true that most people don’t read the majority (vast majority) of terms and conditions they accept.  But this project isn’t going to fix that.

The project would ultimately like to present visual summaries of key provisions in the terms for major platforms.  Here, for example, is their visual summary for Twitter’s terms:

Right off the bat I think anyone looking at this summary would be confused.  The first item is a thumbs down on “Right to leave the service.”  Wait, so I can’t leave Twitter? That doesn’t make a lot of sense.  Fortunately, I can click the Expand button below to get a bit more detail on the point.

So there’s a bit more information in the Expanded view.  And it turns out common sense prevails–I do, in fact, have the right to leave Twitter but Twitter maintains some rights to my content until it’s eventually deleted.  So it turns out that one line summary is wrong.

I can also click on the Discussion link to see how the project arrived at this conclusion.  This is where the project continues its problems.  The analysis is pretty thin on the Discussion and even though it’s pointed out that content’s lifespan is an issue with social media (using platforms that propagate content for quick communications) it isn’t addressed within this term summary.  It turns out the summary item has nothing to do with leaving the service, it has to do with how long your content remains after you leave the service.  And considering Twitter is a public network that is being archived by several third parties, I’m not sure why it’s a thumbs down to have your content deleted 30 days later.

Oh, and the right word is “deactivate,” not “deactive.”  Yes, I’m being picky–but it’s the first term of the first platform being analyzed.  Let’s at least proof read that far.

Part of the problem may be the people providing the analysis, which is no fault of the project itself but does show some of the fundamental problems in trying to summarize a lengthy legal document.  It’s common legal knowledge that if you put five lawyers in a room and ask them a question you’ll get seven different answers (at least).  With very few exceptions we have no idea who the project’s analysts may be or how they are qualified let alone how the project decides between conflicting views.

The project itself seems to have questionable content as well.  Take, for example, Twitter’s summary on copyright (here’s the expanded view):

This summary has a lot of problems.  First, as any lawyer can tell you, it is very different to say that there is an unlimited copyright license and a license that is very broad.  In fact, Twitter’s license is not unlimited.  It is not, for example, perpetual (so it can be revoked).  Twitter also does not obtain the right to make derivative works based on your content, so they cannot take your tweets and adapt them into a novel or screenplay.  Those are limits.

So if someone was just reading the initial summary and saw “Unlimited copyright license” they would be getting false information.  If they read the expanded view it gets a bit more accurate, but also has the conclusion that the license “goes beyond the requirements to run the service.”  Really?  I’d like to ask that question of five lawyers in a room.

But these initial problems could, in theory, be addressed as the project matures and gets more (and more qualified) people involved.  But I think there’s another, even more significant problem in the theory behind the project.

Here’s the thing–most lawyers don’t want to say something in 100 words if 10 will suffice.  The problem is that it can be incredibly difficult to summarize in 10 words what you need 100 to say.  This is not a problem unique to contracts–open your glove box and take out your car operators guide if you doubt that.

Terms and conditions, like most contracts, can certainly be designed and written to be user-friendly.  That often takes more time and effort than a standard contract so it may be an exercise in balancing your resources.  Some do it well (Twitter’s terms are very user friendly and peppered with a few tips and translations as well, Tumblr’s terms are easy to read as well); others, not so much.  But that’s where the effort needs to be made–the terms themselves need to be better, more readable, easily understood.  We’re starting to see that trend develop–the new EULA for Windows 8 are said to be very easy to read and we continue to see platforms develop more conversational terms and conditions.  That’s the way we solve the problem with understanding terms and conditions.

Once you start relying on other people to provide one-line summaries based on shorter explanations based on email discussions amongst potentially unqualified people you’re not simplifying social platform terms, you’re playing Legal Telephone.

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Filed under CopyFUD, Copyright, Privacy, Social Content, Social Platforms, Terms and Conditions, Twitter

The Craigslist Content Prenup

“And do you, Craigslist, take this Content, to license and use however you choose for the rest of your life or until the owner gets really upset and starts a Twitter flamewar against you?”

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.

Craigslist has general Terms of Use which has language on the issue of user generated 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.

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Filed under Commercial Activity, CopyFUD, Copyright, Facebook, Social Content, Social Media Risks, Social Platforms, Terms and Conditions

What’s Really Behind The New Pinterest Attributions

Check out that awesome K icon! It’s attributable!

Friday is always an interesting day for news.  It’s the day you release a story that you’re pretty sure will have negative coverage (politics) or if you just aren’t sure how the media is going to treat it (everything else).  This is true for social media as well. We’ve seen privacy policies updated, major new features, or unpopular news announced on Fridays.  Even Pinterest released the last revision to their terms and services on a Friday–perhaps the email announcing the change had typos from the rush to get out the door on Friday.  Even in our world of 24/7 news and data, most people who do in-depth reporting like to take the weekend off or might be distracted by their weekend plans.  So I see this pattern continuing.

And, look what we have here on another Friday in social media–Pinterest lets its users know via the Pinterest Weekly email that they’ve increased their attribution program by adding Etsy, Kickstarter, and a few other sites to the program.

Their what now?

Yes, this has been a new feature to Pinterest since it was announced in a May 1 blog post.  But outside of the blog post they didn’t talk about it much.  Then, on Wednesday, Pinterest posted an entry to their blog about some new partners to the attribution program.  That news, like the original post, was met with thunderous silence.  Until today when Pinterest included the story in their weekly email to users.  Suddenly there are dozens of articles about the program expanding.

So what’s behind this attribution program?  If you haven’t seen it, it’s worth checking out the picture I’ve put into this post.  I just went to the page showing all Kickstarter pins so you could easily see the small K icon for Kickstarter at the bottom of the pin content window.  That’s the attribution.  It’s a very minor thing in the scheme of things, especially since clicking on the pin itself will typically lead you to the source.  But I find the announcement and general program to be fascinating.

First, the announcement’s inclusion in the weekly email was probably just an innocent inclusion.  I don’t think they were intentionally trying to bury the story.  But there is the possibility.  Maybe that’s just how the Pinterest team works–they roll out their big announcements/changes via emails on Friday.   But we can’t discount the possibility that it’s an intentional effort to send the story out and then see how people react.  Maybe this week they didn’t have anything better for the weekly email, or maybe this week they’re just really proud of the expansion; but I do find it odd that after two blog posts (that gained virtually no attention) they decide to put the program front and center.  Either way, we’re paying attention now.

And if you’re in a conspiracy frame of mind, the story itself is also framed perfectly to generate coverage while flying under the radar.  After all, the story is that the attribution program is expanding.  Not a new program–more sites being included in a program you just didn’t know about. On a Friday.  So you don’t need to think about this too much, you should just go have a fun weekend.  Or shape a new tin foil hat.  Either way.

Second, the program itself is incredibly interesting if they’re doing what I think they’re doing.  Pinterest has a lot of copyright issues to resolve and they know that attribution by itself does nothing to solve them.  You don’t get to make a copy of a piece of art and then do whatever you want with it so long as you tell people who owns the original.  So the public-facing side of attribution isn’t addressing those copyright concerns.  And it isn’t really offering much to its users–anyone could click on a pin to go to the original source.  Having the small icon there for the few pins that come from sites in the program doesn’t add much to the platform.

So why would Pinterest add an attribution program that doesn’t help its content issues and doesn’t add much in terms of platform functionality?

I think what’s really going on is that Pinterest is heavily engaged in getting permission to repost content from third party sites.  This is an outstanding move, if true, although it doesn’t come without peril.  Now that they are signing sites up to their attribution program (getting permission to pin content from that site in exchange for the automatic attribution icon) they will also need to look at whether this makes pinned content from sites outside the program even riskier than it is today.  Before, Pinterest could have tried to assert fair use defense, or that they aren’t the ones doing the pinning–your standard social media platform defenses to copyright claims.  But those defenses could be weakened if you have a mixture of content: some authorized, some not.

If Pinterest wants to move to a fully opted-in platform, though, these are the baby steps they need to take to get there.  They can’t just shut everything down while they get the agreements in place for risk of losing their user base.  Instead, they may feel they will take the risk while they transition certain sites–once they have a critical mass of sites in the attribution program then they can tell everyone else “You either join or you can’t be pinned.”  If Pinterest’s referral statistics keep holding up, that will be a compelling demand.

There are other issues to consider as well.  Such as, does the site with the original pinned content have terms that give it the right to sign up to this attribution program (or at least the one I’m imagining they’ve created).  I’m not familiar with the terms for many of these sites, but one of the first sites in the attribution program was Flickr (owned by Yahoo).  The Yahoo! Terms of Service which govern Flickr content contains the following section

9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE YAHOO! SERVICES

Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:   …

B. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.

I’ve put in bold the text you can read that relates to this point, but it essentially says that Yahoo has a license to share your public Flickr photos on other sections of Flickr (or Yahoo in general).  It doesn’t give Yahoo/Flickr the right to distribute your photos on Pinterest.

So while signing sites up is a good step, if Pinterest is truly using this program to help bring more content into the licensed world, it will need to work with those sites to get permission put into their terms as well.

And if Pinterest is just using this program to put a nice little icon on pins, well that’s no help at all.

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Filed under Copyright, Pinterest, Social Content, Social Media Risks, Terms and Conditions