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How Important Is Reading the Terms of Service?

Terms of service

Or maybe you should ask yourself if you still want to maintain the exclusive rights to your art? That may sound severe but it is something people need to consider, especially for sites like Flickr, Facebook, or SoundCloud where artists may be uploading their visual work or musical compositions. Yet there are so many sites with so many different terms; how can we make sense of it all?

Terms and Conditions, Terms of Use, or Terms of Service (TOS) are often used interchangeably, but are attached to every website, especially those that accept outside material via upload, with only rare exceptions. The TOS is generally considered a contract between the user and the website owners. They are usually long and boring which results in almost nobody reading them. In most cases, the TOS are available via a link at the bottom of the homepage, as well as during the sign-up process. Almost everyone confronted by a TOS screen will quickly and without even a glance, hit the “Agree” button, never considering the implications of that action. Even if read, the minutiae contained in the TOS is often difficult to understand for most non-lawyers, that it may be a pointless exercise anyway. Unfortunately, users are still bound by the terms, which may have clauses that impact the user’s automatic exclusive rights granted by the Copyright Act.

Sites need the TOS.  They must protect themselves, as does any party entering into a contractual agreement although sometimes they are broader than necessary. But look at it from the point of view of the legal team writing them; they want to provide their client with the greatest protection possible, considering every contingency they can imagine.  The breadth and depth of the terms will depend on the size of the user base and how many different services are  provided.  So, the TOS for large sites, like Twitter, Facebook, YouTube and Flickr are extensive and often end up looking like an unnecessary rights grab

Let’s look at Facebook for an example. Imagine Facebook creates a poster which will be distributed in every major city.  The poster art is a collage of Facebook profile screens, each poster containing only profiles form people living in that city.  Facebook does not want to obtain permission from every person on that collage, especially since it may contain copyrighted materials.  Having surmised that this kind of marketing was possible, the attorneys writing the TOS added in broad copyright and licensing language, including the right to use the material without specific permission as well as a perpetual license for that material just in case years later, they can re-use the same image even if the users have deactivated their accounts.

Facebook probably has no intention of exercising those broad powers, and if they did, it would likely be limited to a reuse, but they could likely use the images in ways that might be harmful to the reputation of the artist and affect the value of the artistic work.  But Facebook also knows that a broad TOS will not result in the loss of many users.  While the user might find the TOS unacceptable, they will likely still use the service and probably never read the TOS in the first place, so don’t understand the risk.

That is a conundrum that is difficult to overcome but here let me make my audience aware of a little software tool that might help. Terms of Service: Didn’t Read is an add-on for Firefox and Chrome that provides a summary of the TOS for sites as you surf. It’s simple to use; just surf to a site, click the question mark in the toolbar and a summary of the TOS for that site will be provided.  The tool has a large database of sites so it seems to work for at least most of the larger sites.  Below is the summary for the copyright section on Facebook:

The copyright license that you grant to Facebook goes beyond the requirements for operating the service. For instance, it includes the right for Facebook to transfer the license or to license it others on their terms (“sublicense”). Also, the copyright license does not end when you stop using the service unless your content has been deleted by everyone else.

The add-on provides a discussion area so people can comment on each aspect of the TOS. It’ s free, so give it a try, and maybe it will help you make better and more informed decisions and keep you from losing some of your exclusive rights.

 

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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