With TwitPic recently finding itself in hot water over a terms of service change that prevented its users from reselling photographs they had uploaded using the service (their TOS has since been changed to slightly less controversial terms), there’s been a great deal of interest lately the terms we agree to when registering new accounts at various site and the time bombs that could be buried in there.
The truth is that very few people take the time to as much as skim the TOS before clicking “accept” and are completely unaware of what is in the legally binding contract they just “signed”. This has the potential to create major headaches down the road when and if these services decide to exploit their rights to their fullest.
So, if you’re motivated to be a little more careful with the terms you agree to, here is a quick primer on five critical things you want to check when accepting a new TOS. While, obviously, this isn’t a complete list, these are probably the things you probably want to look for first in order to best understand what it is you’re signing and what it might mean moving forward.
1. TOS Modification
It’s a truth that sites and companies need to update their terms of service from time to time. Whether it’s to amend it for a new service or even just fix a typo, sometimes changes have to be made. However, there is a great difference in how you are notified of and approve these changes.
Some companies have terms that force you to agree not just to the terms in front of you, but to any changes they make to it in the future. This means, effectively, you have no idea what you’re agreeing to as it could change at any point.
Others, however, will notify you after a change and give you a certain number of days to cancel your account if you don’t agree. Still not a perfect solution, but much more fair.
2. The Copyright License
If you’re uploading your work to the site or service, they need a license to display it, make copies of it, etc. in order for them to do what you want them to. However, it’s important to read the license carefully and make sure you aren’t giving up rights to your work that you don’t intend.
Pay special attention not only to the rights that the company has over your work, but if those rights are transferrable and/or sublicenseable. If either is true, the rights can be sold to another company without your explicit permission. This can be a good thing, for example if the company is bought out, or it could be misused, for example selling rights to your images to third parties without your permission or giving you any revenue.
If you are having trouble understanding this portion of the TOS, take a moment to look up some of the more common terms used in copyright contracts.
Many terms of service require you to agree to a jurisdiction when you agree to the contract. It’s important for you to know what that jursdiction is, usually the courts closest to the company itself, and if the company requires you to go through mediation first.
This might seem to be a small matter, but if there is ever a dispute between you and this company, especially one where they want to take legal action against you, this could put you in a situation where you have to defend yourself in a court that is far, far away from you and, since you agreed to the jurisdiction, there isn’t much you can say.
4. Guarantees and Indemnity
One of the key parts of any TOS is that both sides are making promises (or not making promises) to one another. Typically a TOS will provide few, if any, guarantees for the user, including no guarantees on service reliability. Most even allow the host or the service to delete your content for any reason or no reason at all. You, on the other hand, promise not to engage in certain activities, many of which are illegal or damaging to the service, and to indemnify the company should you do something wrong.
Indemnification, or indemnity, means that you agree to pay them for any damages you cause in breaking the contract. For example, if you violate the law and get the company sued, they can come after you for the damages and legal expenses.
In short, understand what, if anything, they are promising you and what you’re promising them in return.
Finally, before entering an agreement, you need to know how to end it. Many TOSes terminate on the deletion of the account, others some period of time after that and still others are perpetual, meaning that they never end, even if you leave the site completely.
Obviously, the harder it is to exit a contract, the harder you should think about walking into it. Either way, it’s best to have your exit planned if things become problematic later and, to do that, you need to understand how your contract says you can leave it.
It’s important to remember that, just because a site or company has an overreaching TOS doesn’t mean that they are evil or are going to do bad things with you and your work. It just means that they are protecting their interests and likely went a bit overboard in doing so.
That being said, it’s important to remember that an overreaching TOS does open the possibility for abuse and that, if you agree to it, you’re putting yourself and your work at risk.
That being said, if you’re TOS savvy, take the time to read what you’re agreeing to and make smart decisions about what to accept and not, you can avoid many of the major pitfalls when it comes to dealing with TOSes and be a lot safer in the future.
In short, taking a few moments when signing up for a site can save a lot more headache down the road. Time spent reading a contract, whether online or off, is time well spent.
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I am not an attorney and nothing in this article should be taken as legal advice.