Did You Read That?

22 July 2009

I actually, occasionally, read the terms of service and licensing agreements before clicking “Agree” for websites and software programs.  Apparently I’m a bit odd in that sense.  Even my Intellectual Property Licensing professor said she doesn’t read them.  Sometimes I’m just curious, sometimes I really care, sometimes I don’t have the time or energy.  One of the biggest factors in my decision to read is whether there are other options for similar services or if I can tailor my use of the site to fit only the terms to which I agree.

A Little Comparison

For example, I reluctantly joined Facebook a few months ago but my only ‘picture’ is a black box.  Why?  Because this is the Facebook Terms for users’ content include:

“you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")” (emphasis added)

Facebook has really cleaned up their terms of use (compare to prior), but I don’t like that “transferable” part in there.  Why does Facebook need the right to transfer the license I gave Facebook for my work?  If another company were to buy Facebook, it would want all the license rights to the content on the site, but I might not trust the new owner anymore than I trust Facebook.  [And, when I joined, Facebook’s terms included a provision allowing Facebook to use my content commercially.  I presume this was because Facebook runs ads on the side of the page, but it was a term with which I am not comfortable.]

I was able to choose not to post photos on Facebook because there is another option; Flickr.  The Yahoo! Terms of Service that govern for Flickr include this nice little tid bit:

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. (emphasis added)

See that nice little “solely for the purpose of…” clause.  I love that.  Yahoo! needs the mentioned license rights in order for Flickr to do what it’s supposed to do.  But, I have no desire to give Yahoo! those rights for something like handing my photos out on flyers at a conference (unless, of course, they’re cc-licensed in a way that allows this).  Yahoo! doesn’t try to grab more rights than it needs.  Beautiful.


Sometimes, a license agreement or terms of service can be pleasantly surprising.  Sometimes, surprising in a not so pleasant way.  The Microsoft Terms of Use are actually pretty easy to read and navigate.  On top of that, the company does a decent job of explaining the nebulous concept of fair use, explaining that “[I]n limited situations, you can use copyrighted works without permission from the copyright holder.”  But the really great, and extremely surprising, piece in the Terms of Use is the mention of and support of Creative Commons licenses.  Creative Commons and Microsoft are usually assumed to be on opposite sides of the battlefield.  It’s great to see Microsoft recognizing the value CC licenses provide:

Creative Commons licenses are a simple way for you to let people know what uses they can make of your creative works and under what conditions.

Google Chrome, on the other hand, has a not so great surprise in its terms:

“12.2 Google may at any time, terminate its legal agreement with you if: (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms)”

In general, the way software licenses work is that if you use the software, you’re agreeing to the licensing terms and therefore using it with permission.  If you were to use the software without permission, you would be committing copyright infringement because of the unauthorized reproductions of the copyrighted elements of the software.  So, if you breach a provision of the Terms so that you are no longer an authorized user, you are now an unauthorized user and continued use constitutes copyright infringement.  Copyright infringement is very expensive if you are found liable.

Incidentally, Creative Commons licenses have a very similar provision in them.  “This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License.”  This term makes sense in CC licenses because the license is specifically granting particular copyright rights for a copyrighted work.  If the person won’t agree to the terms for these rights, then the person who owns the rights doesn’t need to grant them.  i.e. If I’ll let you sit in my chair as long as you won’t stab it with your pocket knife and you insist you want to stab it with your knife, there’s no reason I should let you sit in it.

The license agreement for a piece of software, such as Google Chrome, contains many more issues than just copyright rights.  For example, Google’s Terms include provisions about information storage, disrupting service, removing content and protections for their software that go beyond that covered by normal IP laws.  In this case it’s like I’m saying you can sit in my chair, but only if you don’t stab it with your knife, do eat potato chips tomorrow, never step on my lawn, and only cry on Thursdays.  If you happen to cry on Wednesday, you can’t sit in my chair.  Whether or not I let you sit in my chair has a great deal to do with how you’ll treat my chair; it has nothing to do with when you cry or if you step on my lawn.

Will I still use Chrome?  Yes.  Why? Because there aren’t any terms I see myself not being able to follow.  The other terms are generally agreeable to me.  And, I find Chrome to be my best option for browsers.

The key to reviewing terms of service is to know what you are willing to accept for a specific service and what will never be acceptable no matter how great the service.  And have fun reading, you never know, you might be surprised!


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