'ToS'sing and Turning.
I had signed up to Yahoo! Contributor Network a while back and they recently changed their ToS. I don’t recall their previous ToS (and they haven’t provided a comparative copy highlighting the changes) but the new ToS has some interesting points that struck me as odd.
I realize that I shouldn’t be picking on Yahoo! alone, since most of this ToS wording comes from a boilerplate ToS. I’m sure that the terms and conditions found on other, similarly crowd-sourced networks are more or less the same. In this post/rant I attempt to elaborate (and highlight) the ‘we’re-not-entirely-responsible-for-what-happens-here‘ attitude/stand that most of these networks seem to often adopt.
For instance, under the ‘CONTENT’ section of the ToS, Yahoo! states:
- You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials whether publicly displayed or privately transmitted on the YCN Services (“Content”) are the sole responsibility of the person or entity from whom such Content originated. The Content is intended for your personal, noncommercial use. All materials posted on the YCN Services are protected by copyright and are owned or controlled by Yahoo or the party credited as the provider of the Content. You must abide by all copyright notices and any other terms restricting your use of any Content.
[The emphasis in the above blockquote is mine.]
This sentence is delightfully vague. I am yet to correctly understand what it means. Does it mean I own the ‘Content’ I (or anyone for that matter) submit(s)? Or does Yahoo! own the ‘Content’ thus submitted? It definitely makes sure that the ‘Content’ is my responsibility and mine alone. Well, if it is my responsibility, why don’t I get to own it entirely?
But, wait a second. That’s not all. When we get to the “USER-GENERATED CONTENT” section, this piece of legalese gobbledygook awaits us:
- You acknowledge and agree that any content that you upload, post, email, transmit, or otherwise make available to the YCN Services including comments, forum or board messages, reviews, shared activities, and updates (“User-Generated Content” or “UGC”) may be edited, modified, removed, published, transmitted, or displayed by Yahoo and that you hereby waive any rights you may have regarding your UGC being altered or manipulated in any way that may be objectionable to you.
To my (limited) understanding – and correct me if I am wrong – what Yahoo! is trying to say here is:
- Everything I post on the YCN can be edited/altered/manipulated by Yahoo!, should they choose to do so.
- I should (or rather, must) have no objection if Yahoo! were to edit/alter/manipulate any UGC I create.
In other words, I am giving Yahoo! a carte blanche to edit/alter/manipulate whatever I submit in a way they see fit. Furthermore, if I find their edits/alteration/manipulations objectionable, I am being asked to explicitly waive my rights of even saying, “I never said THAT!” WTF?
Reading further into the ToS, we come across this absolute peach:
Subject to the terms and conditions of this TOS, you hereby grant Yahoo a perpetual, worldwide, nonexclusive, royalty-free, and fully paid-up license (with right to sublicense) to the UGC, including without limitation the right for Yahoo or any third party Yahoo designates, to: use, copy, transmit, excerpt, publish, distribute, publicly display or perform, create derivative works of, host, index, cache, tag, encode, modify, and adapt (including the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning, or other technologies now or in the future), in any form or media now known or developed in the future, any UGC submitted by you on or via the YCN Services or any other website owned or operated by Yahoo.
In other words, whatever ‘Content’ I create may or may not be mine once I publish it on the YCN BUT Yahoo! and all its subsidiaries are allowed to do whatever they want with it with regards to distribution, derivation, adaptation – the whole nine yards. However, if anything within the ‘Content’ were to be found objectionable, I am supposed to absolve Yahoo! of any wrong-doing and take complete responsibility myself. Why? Because I created the content in the first-place.
Here’s my question: If Yahoo! were to exercise this in some situation and alter the entire content in a way that substantially changes its meaning, would the edited ‘Content’ be Yahoo!’s responsibility or mine? Last I checked, it still carries MY name on it. Does that mean I am still responsible for the edited ‘Content’? Also, who gets to ‘own the Content’ in such a case?
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Sure, one might want to argue that they do not really care what I have to say. That this text is supposed to encompass ALL users. That this is merely a preemptive move against those who would want to upload ‘harmful’ stuff on to YCN. However, as a potential user of their services, this text applies to me as well, doesn’t it?
I am not even going to delve into the ‘INDEMNITY’, ‘DISCLAIMER OF WARRANTIES’, ‘LIMITATION OF LIABILITY’ and restriction of jurisdiction clauses found on standard boilerplate ToS. No, I do not think that they are entirely wrong but I think that they belong to an age where laws were territorial. To treat cyberspace as physical space is not only illogical but it is also ridiculously regressive. I honestly believe that cyberspace transcends territory and cannot identify with (nor does it need) the book of rules that is used in a physical court of law.
Am I saying we need a SOPA or a PIPA to provide better regulation of the terms of service on the internet? Absolutely not. But we definitely need to do away with ridiculously large and obfuscatingly worded ToS pages that sometimes run longer than the unamended US Constitution.