A Million Terms, A Million Contracts

Filed as Editorial on February 23, 2009 9:49 am

The Facebook TOS debacle last week shined a rare light on the subject of rights we give away when we sign up to use site or service.

Though Facebook’s new TOS, which removed the clause that lets users end their license granted to Facebook by deleting their work, was both of poor judgment and very worrisome, it was likely much ado about. Not only was the TOS rescinded shortly after the controversy began, but even with the new TOS, Facebook’s rights were still limited by the user’s privacy settings.

What has gotten significantly less attention is the sheer number of TOS’ that most Web users sign just as part of being on the Web. In an age where almost every site is also a “service”, it seems we’re creating more accounts than ever and, with every sign up, signing away more and more of our rights.

Most of us have lost track of all the sites we have registered for, the agreements we have signed and few of us actually take the time to even skim the terms that we do accept. Our rights to our online lives are in millions of pieces, scattered across countless companies and sites.

Piecing them back together, if it became necessary, could be nearly impossible. Worse still, as many of these companies continue to expand and grow the rights they give themselves via their TOS,

It has come time to question our love affair for new services and the terms they force us to agree to and seek ways to streamline and simplify this very messy process.

Why Terms of Service are Necessary

For most Web 2.0 sites, a terms of service is a necessary evil. To provide their function, they need to both protect themselves against users that might try to abuse their service, such as spammers, by laying down ground rules for use and they need to secure permissions from their users in order to do the things.

The problem is that copyright and privacy laws make it so that, without permission, it would be against the law for many Web 2.0 sites to do what they do. Simple things such as displaying bios, cropping avatars to size or converting videos to a Web-playable format could be seen as infringements on user rights.

Though it might seem to be patently obvious that YouTube is going to convert videos to FLV format or Facebook is going to display your profile image, without rights clearances in the TOS, those uses could become the focus of court battles. A good terms of service can avert these issues by getting the user to sign an agreement through clickwrap that spells out the rights they are giving YouTube, Facebook, etc.

The problem is that the rights these sites lay claim to are almost always greater than the ones absolutely necessary. Some of this is because it is easier to grab more (EX: It is easier to simply give oneself the right to make derivative works than to list a set of situations where it is acceptable to do so, such as video conversion), sometimes it is a matter of covering bases (claiming rights not necessary but might be related or needed later) or a matter of future planning (thinking about potential mergers, buyouts, etc.)

Back end changes have also had an impact on the way TOS’ are written. When a site begins to use a cloud storage solution, such as Amazon S3, it needs to ensure it has rights from the user to do so and adequate permission to sign Amazon’s own TOS.

As a result of this, TOS’ have grown over the years. Though none I’ve seen have gone so far as to actually try and claim all rights to user-generated work, something that would likely not stand up in court, the rights that various sites have been claiming have grown more and more broad, both as Web-based services have become more complicated and the legal climate causes companies to to expand their terms to better protect themselves.

Why To Worry

Anyone who has ever signed a terms of service needs to be at least somewhat worried by this trend. Though the odds of any one person having their work misused via a TOS or having some need to reclaim the rights they gave away are slim, the reason to worry is still there, consider the following:

  1. Most active Web users have signed dozens, if not hundreds, of terms of service agreements. Most of which they have barely read at all.
  2. Each of those TOS’ have different rights which the user has granted that particular site over any work that passes through their service.
  3. Much of the content, including avatars, bios, images and other information is posted on many different sites.
  4. Most TOS’ have a clause in them that allow the site admins to unilaterally update the TOS with X days notice. However, these updates are rarely well advertised.
  5. For the most part, only large sites, such as Facebook, have any real scrutiny of their TOS

As users we’ve become accustomed to jumping on every new service and clicking straight past the TOS. However, that habit is very dangerous for many different reasons and, as the number of sites we register for and host our content with grows, so will the potential for something to go very wrong.

Preventing Problems

Though we are unlikely to lose our fascination with the latest social networking or content sharing sites, there are several things we can do to protect ourselves from becoming victims of a TOS gone awry.

  1. Self-Host: A TOS only applies when content is hosted on or somehow passes through another’s service. Whenever possible, host content that is valuable to you on your own server. With shared hosting accounts so inexpensive, you can likely create your own image host for less per month than a paid Flickr or Imageshack account and not worry as much about the TOS.
  2. Read Carefully: It only takes a few moments to read the important parts of a TOS before signing up. Definitely do so, especially if you plan on putting any content on it.
  3. Limit the Places You Post: Limit the places you post your work. For example. If you can’t host your own blog, keep all of your blogging on one provider. The same goes for images, social networking, etc.

However, it is the companies themselves that could easily do the most. Rather than burying their terms and actively discouraging users from reading them, they could work to make them more clear and presentable.

One example would be Talkshoe, which has its users license their audio underneath a Creative Commons License rather than read a long, complicated list of rights. This makes it immediately clear to the user, in human-readable format, what rights they are giving up by using the service and what rights they keep. Also, it makes it so that others have the same access to the work as Talkshoe, preventing Talkshoe from claiming any kind of relative exclusivity.

Conclusions

The good news is that Facebook has reverted back to its old TOS after the uproar and has created a new group for getting feedback on its terms. It has recognized that these issues are important to its users and are working to bring their input in and involve them in any future changes.

That has the potential to be a very good example for others in the industry.

However, the problem does still remain. With Web users having signed countless TOS’, many of which are updating regularly with little attention, it is easy to see how the rights to user’s work are scattered and confusing.

The need to simplify all of this has never been more clear and the need for users to take responsibility for the TOS’ they sign and read the terms provided them has never been greater.

In the future, hopefully we can find some way to make these terms both consistent and clear, perhaps with the aid of Creative Commons, but in the meantime, we have to be careful what we sign, even if it is just with the click of a mouse.

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  1. By Aaron B. Hockley posted on February 23, 2009 at 12:06 pm
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    Facebook is but one of many. I gave a presentation at Ignite Portland last week with a quick overview of various websites and terms of service, specifically the content licensing portion of those terms. If interested, you can watch my presentation (5 minute video on Blip.tv).

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  2. By the_guv posted on February 25, 2009 at 3:14 am
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    tx Aaron, this is very true…Facebook is but the tip of an iceberg.

    I wonder if I may post a piece I wrote about facebook content scraping with some useful advice for protesting. Hoping this is OK, and for sure relevant…

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