Category Archives: Terms of Use Policies

New Year’s Resolution: Always Read Terms of Service for Social Media Networks!

You should always read very carefully the various terms of service associated with the social media networks in which you participate – particularly with respect to ownership of the material that you post and/or share on these sites.   In other words, do you know who owns what you post?

Recently, one social media site’s public announcement highlighted this question in appalling clarity.  On December 17, 2012, Instagram announced that it had the right to sell any photo that you took and uploaded using its service – in other words, to “commercialize” it.  (SeeCNET’s article about the change in terms: Declan McCullagh, Instagram says it now has the right to sell your photos,” CNET, Dec. 17, 2012.) 
If you are unfamiliar with Instagram, it used to be a standalone company, but was recently acquired by Facebook and is used on Facebook to share customized photos with your networks.
Here’s the rub:  the right to distribute (or not to) is actually an exclusive right set forth in the Copyright Act as being owned EXCLUSIVELY by the copyright owner.  17 U.S.C. §106.  Not by a vendor who handles the distribution.
Unless the author has licensed its ability to redistribute an “original work of authorship fixed in a tangible medium of expression” (as an original photograph surely is) to another, any redistribution of a published work constitutes copyright infringement under 17 U.S.C. §501, and carries certain remedies and penalties depending on the context.
The public outcry in response to this notice was apparently widespread, as Instagram immediately appeared to retract this statement, and stated that users retain the copyrights in their original photographs even when posting them using Instagram’s tools.  Declan McCullagh and Donna Tam, Instagram apologizes to users: We won’t sell your photos,” CNET, Dec. 18, 2012; see also Instagram Blog, “Thank You and We’re Listening,” Dec. 18, 2012.  Its restatement of the policy suggested that Instagram believed the hue and cry to have been solely based on a misunderstanding of the revised terms of use and privacy policies.
 
In this restatement, Instagram explained that ownership rights would not change as a result of this policy, and neither would any privacy settings users have already set.  Current Version of Instagram’s Privacy Policy and Terms of Use, updated Dec. 18, 2012.
The Copyright Alliance points out that this explanation does not meant that Instagram cannot commercialize your images – in fact, the text that Instagram removed was merely a disclosure of the ways in which it “can” use your photos:
“Instagram has issued a statement saying that it has heard its customer’s complaints, is removing the clause that most offended its customers, and reverting to its old terms of use. But ironically, the clause that caused the outrage, and which Instagram says it has removed, was merely a disclosure and acknowledgment by the user of how Instagram could use a customer’s images. Removing that clause alone doesn’t change the license the user grants Instagram. Moreover, even if Instagram reverts to its current terms of service, those terms of use not only permit Instagram to commercialize user posted images in virtually unrestricted ways, they pass the responsibility for paying any royalties or fees owed for such commercialization on to the user who originally posted the works.” (emphasis added).  Read the Copyright Alliance’s full article for more on this point, “Instagram Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of Service Carefully),” Dec. 21, 2012.
The lesson to be learned here is to be proactive with all of your social media use – understand what Terms of Service apply to your use, and whether the company will be using your information in a way with which you are not comfortable.  Review carefully to determine whether by using their site, you automatically grant the site a license to use your content (your text, pictures, video, whatever) without specific notice or obtaining your consent to that specific use. 
And, try to stay on top of changes to these policies in case changes are made that further impose on your privacy or intellectual property rights.  Many of these policies have a “these terms can be modified without prior notice” provision, but the sites may also host blogs that announce new features or changes to their services.  You might want to subscribe to them (through RSS feeds or email) so that you are notified promptly of any advertised changes. 
Here are links to some of the more commonly-used social media sites, and their relevant blogs (if available):
·       Facebook (“Facebook and privacy”; privacy policy; terms of service)
·       MySpace (privacy policy; terms of service; “learn more”)
·       Twitter (blog; privacy policy; status)
·       LinkedIn (blog; community guidelines; privacy policy)
·      Instagram (terms of service; blog)
·       Snapfish (terms of service; privacy policy; sharing FAQ)
·       Google (which owns Google+, YouTube, Blogger, Picasa, and Instagram competitor, Snapseed)
·       Reddit (blog; privacy policy; user agreement; rules; “reddiquette”)
You might also be interested in posts from The Copyright Alliance(their article on Instagram is here) or the Electronic Frontier Foundation(their article on Instagram is here) generally, as they both cover issues like these on a regular basis. 

Google Announces New Privacy Policy and Terms of Service

Effective March 1, 2012, Google’s new Privacy Policy and Terms of Service will go into effect.  These changes are billed as simplifying and consolidating over 60 different privacy policies that apply to Google’s library of services and tools – specifically that it’s “a lot shorter and easier to read.”  (See Overview for this text.)  What appears below is a brief summary of each document, but I encourage you to read the originals, as other issues may jump out at you based on your individual circumstances.  Following these summaries is a description of how to opt out.
Privacy Policy
A quick comparison between the new Privacy Policy and the October 20, 2011 version of the main Privacy Policy suggests that perhaps the information collected by Google – or how that information is used – hasn’t changed, but instead, how the policy is explained.  (I did not compare the March policy with any of the other 60-odd policies that Google referenced in its Overview, so there may be some significant changes here.)
Among other notable provisions of the new policy are the following: 
·        Google may collect device-specific information (such as specifics about your hardware model and mobile network, including your phone number).  Google may associate such device-identifying information or phone number with your Google account.
·        Google may collect and store server logs showing how you used their services (such as search engine queries), call history (to/from phone numbers, duration of calls, SMS routing info, forwarding numbers, and time and date), IP address, device crash history, browser type and browser language, and may also use cookies.
·        Google may collect information about your location using GPS signals sent by a mobile device or sensor data searching for nearby WiFi access points and cell towers.
·        Google may use information from cookies or “pixel tags” to “improve your user experience and the overall quality of our services.”  The example Google gives is being able to remember your language preferences, but the breadth of this tool could be rather large.
Google offers several tools to provide “Transparency and Choice,” including links to review and control information tied to your Google Account, view and edit ad preferences, adjust your Google Profile, control with whom you share information and port your data from Google’s services through a tool called Dataliberation.
Google also reminds users that any information that users share publicly will be indexable by search engines, including Google.  Google explains that it provides mechanisms to correct or remove incorrect data that reside on its servers, but provides no links to place a request to the begin the process. 
Finally, Google provides information about what it shares with non-Google entities and explains it security protections.
Terms of Service
Google’s new Terms of Service are pretty straightforward and contain provisions such as warranties, disclaimers, limitations on liability, business use of Google’s services, and choice of law (California – although specifically disclaims California’s conflict of laws rules).  The Terms of Service uses expressions like “Don’t misuse our services” and “Don’t interfere with our services.”  It also provides confirmation that “you retain ownership of any intellectual property rights that you hold in” content that you upload to Google’s services.  But, and this is significant, “When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations, or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content.”  Google follows this broad automatic license with this explanation:  “The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.”
Additional Details about Managing Your Online Profile

In its Privacy Policy, Google also provides information about how to opt out of certain advertising delivery (such as DoubleClick) – more information can be found here: https://www.google.com/intl/en/privacy/ads/.  Google explains that you can opt out of Network Advertising through a single page (http://www.networkadvertising.org/managing/opt_out.asp), which tells you whether certain cookies are present are your machine and allows you to opt-out to each individually or to all of them at once.   You can also permanently block the DoubleClick cookie.  Be sure to read all of the disclaimers before making permanent changes to your browser. 

Note also that in the Advertising and Privacy section, Google explains, “Ads that appear next to Gmail messages can also be personalized based on emails in your account. Read more about ads in Gmail and your personal data.     

You can also request that content you don’t want to be included in Google’s search engine results be removed.  Details are here:  http://support.google.com/webmasters/bin/answer.py?hl=en&answer=164734 (Google cautions that these tools should only be used to remove pages urgently – such as if a private credit card number is exposed – where immediate action is required.  Google adds that using the tools too liberally within your own web site could cause functionality problems.)

As mentioned above, these new policies go into effect across the board for Google services on March 1, 2012.  You have a little time between now and then, and I’d encourage you to read these policies for yourself and determine what pieces (if any) matter to you so that you can make changes or opt out, if necessary to protect your interests.

Why You Should Read a Web Site’s Terms of Service Before Posting

All Internet users should be aware that many of the sites that they visit on a regular basis provide some guidelines about the use that may be made of the site. These guidelines generally cover copyright notices, whether you can copy or share the site’s original content with others, and what rights you retain when you post comments or contributions to their community resources, such as blogs, chats or photo/video share functions. If the site provides content such as podcasts, video clips or streaming content, the Terms of Use will generally outline the limitations to your use and further dissemination of such materials.

For instance, if you visit an online newspaper, such as The New York Times or The Wall Street Journal, the Terms of Service/Use will remind you that the newspaper retains copyright rights in the materials and that by using the site, you agree not to “modify, publish, transmit, participate in the transfer or sale of, reproduce . . ., create new works from, distribute, perform, display or in any way exploit” the newspaper’s original content. NY Times Terms of Service ¶¶ 2.2; see also WSJ’s Subscriber Agreement ¶ 6(b) (users “may not sell, publish, distribute, retransmit or otherwise provide access to the Content received through the Services to anyone, including, if applicable, your fellow students or employees”).

Most of these policies also expressly prohibit using their information for commercial purposes, stressing that their services may be used for “personal use only.” See The Wall Street Journal ¶ 6(b)(iii) (“you may not use such an archive to develop or operate an automated trading system or for data or text mining”).

In addition, if you visit a medical site, the Terms of Use may disclaim any liability for any injuries that you receive by not getting medical treatment for your issues and for your decision to rely on the educational information provided by the site in lieu of seeking treatment. See WebMD. These sites also will disclaim that they provide any medical advice, and will advise you to always follow your doctor’s instructions and obtain proper medical treatment when you need to.

Many of these sites will typically provide guidelines for what material (text, photos, video) can be posted and what may be deemed “offensive” to the applicable community. If you violate the terms of the particular site with respect to “offensive” or “restricted content,” your ability to access the sites or continue a membership with them may be blocked or discontinued.

These Terms of Service – coupled with the site’s posted Privacy Policies (see the prior post, Recommended Reading: Privacy Policies for Web Sites You Visit) – should inform your choices about the behavior that you should use on each site, as well as giving you advanced warning if the site will re-use your information later, perhaps without your express consent.

What Happens to Information You Post – Can the Site Re-Use It?

This really raises questions about who owns the copyright to content that you write. Under U.S. copyright law, an author automatically obtains copyright rights in his or her “original works of authorship” (books, paintings, drawings, photos, sculptures, songs, portions of web sites, etc.) once they are “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a).

You should read the terms of service for any web site on which you plan to post original content, such as comments to news articles, status updates on social networking sites, tweets on Twitter, photos uploaded to a photo sharing web site, or even videos shared on YouTube. Each of these sites has different policies in place regarding what they do with your original content, and in some respects, may limit what you can do with that content later. Here are some examples:

Facebook, Statement of Rights and Responsbilities, ¶ 2: “You own all of the content and information you post on Facebook, and you can control how we share your content through your privacy and application settings. In order for us to use certain types of content and provide you with Facebook, you agree to the following: . . . 1. For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: 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”). This IP License ends when you delete your IP content or your account (except to the extent your content has been shared with others, and they have not deleted it).”
— This version of Facebook’s terms (dated May 1, 2009) suggests that once you delete your original content – or cancel your account – their limited rights to use it will expire. They also note, however, that if you have shared information with others and if they have not deleted it, Facebook’s ability to access to this material will not
disappear.

Shutterfly, Terms & Conditions ¶ 3: With respect to content you upload, “you will retain ownership of such Submissions, and you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, fully paid-up, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, and publicly display and perform (publicly or otherwise) such Submissions, solely in connection with the Service (including without limitation for purposes of promoting the Service).”
Note that you also consent to allow Shutterfly to use your likeness for purposes of (among others) promoting or marketing Shutterfly to others: “(iii) you hereby consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in a Submission to use such individual’s likeness, for purposes of using and otherwise exploiting the Submission in the manner contemplated by these Terms (including for purposes of promoting the Service), or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to Shutterfly a copy of any such consents, releases and/or permissions upon Shutterfly’s request).”
— Shutterfly reserves the right to re-use your photos or videos to create derivative works for purposes of promoting or marketing their service – and provides that your use of the service constitutes your consent to use your likeness in their marketing efforts.

Snapfish, Terms & Conditions ¶ VII(A): “In order for Snapfish to make your photos available to you and your invitees, as well as to use images to offer you a special variety of online services, Snapfish needs the rights to make use of all Content on the Service, in accordance with and subject to these Terms. Accordingly, as a condition to your Membership, you hereby grant Snapfish a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of, and distribute your Content, solely for providing or improving the Service.”
— Snapfish claims to limit its use of your material to anything required to “provide or improve” their service to you.

Twitter, Terms of Service, General Conditions: “The Twitter service makes it possible to post images and text hosted on Twitter to outside websites. This use is accepted (and even encouraged!). However, pages on other websites which display data hosted on Twitter.com must provide a link back to Twitter. . . . We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours.”
— Twitter appears to claim no rights in any of your original content.

The Wall Street Journal, Subscriber Agreement ¶ 7(b)(iii): “You agree that upon uploading, posting or submitting information on the Services, you grant Dow Jones, and our respective affiliates and successors a non-exclusive, transferable, worldwide, fully paid-up, royalty-free, perpetual, irrevocable right and license to use, distribute, publicly perform, display, reproduce, and create derivative works from your User Content in any and all media, in any manner, in whole or part, without any duty to compensate you.”
— This means that they can re-use what you post, (sometimes) authorize others to re-use it and they are not required to pay you anything for it, or obtain your prior permission.

WebMD, Terms & Conditions, User Submissions: “If you submit any business information, idea, concept or invention to WebMD by email, you agree such submission is non-confidential for all purposes. . . . If you make any submission to a Public Area or if you submit any business information, idea, concept or invention to WebMD by email, you automatically grant-or warrant that the owner of such content or intellectual property has expressly granted-WebMD a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content in any media or medium, or any form, format, or forum now known or hereafter developed. WebMD may sublicense its rights through multiple tiers of sublicenses. If you wish to keep any business information, ideas, concepts or inventions private or proprietary, do not submit them to the Public Areas or to WebMD by email.” (Emphasis in original).
— Essentially, WebMD acknowledges that they plan to commercialize any good idea that you provide to them without your permission if you ignore this warning.

YouTube, Terms of Service ¶ 6(C): “For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.”
— YouTube acknowledges that it might use your content to promote their services.

When Can You Forward the Web Site’s Original Content to Your Friends?

In addition to being concerned about a site’s proposed use of your original writings (whether through comments, posts, blogs, updates on social networking sites, etc.), you should be aware that the Terms of Use policies will govern your ability to forward their original content to others.

As explained above, you should assume that as an initial matter, the web site on which you find an interesting article is probably the owner of the copyright in that material. Under copyright law, copyright owners have the exclusive right to create derivative works (which your comment forwarding their content might be) and to publish or distribute their works as they see fit. 17 U.S.C. § 106. Anyone who engages in this conduct without their consent or approval could engaging in copyright infringement, which carries statutory damages (per instance) of between $750 and $30,000. Id. § 504 (c). In addition, if a court determines that your actions were “willful” justifying an enhanced damages award, this amount per instance can increase up to $150,000. Id. As a result, you should always review the site’s terms of service to see what the limits are to your use of their original content.

Many sites will provide guidelines for downloading from their service or sharing their original content. They may provide limited licenses to permit downloading as long as you include all copyright notices, a reference to the original source of the material and/or use the material for personal use only. See NY Times Terms of Service ¶¶ 2.2, 2.3.

If they provide tools to share their materials on certain social networking sites (like Facebook, Yahoo Buzz, LinkedIn and others), the sites might give more leeway to the number of times that you can share their materials. See The Wall Street Journal ¶ 6(b)(iii) (“While you may download, store and create an archive of articles from the Service for your personal use, you may not otherwise provide access to such an archive to more than a few individuals on an occasional basis. The foregoing does not apply to any sharing functionality we provide through the Service that expressly allows you to share articles or links to articles with others.”)

Forwarding original content without the consent of the owner can be copyright infringement if you don’t fit into a defense to the allegation, such as fair use or parody. The case law that defines when conduct is “fair use” or that the resulting communication is a “parody” is detailed and voluminous – too large to try to summarize here. Suffice it to say that it’s a very fact-intensive analysis and one cannot assume that just because someone believes their own conduct is “fair” does not mean that the law will recognize it as qualifying for the “fair use” defense.

** Note: By linking the terms of use provided by the web sites identified above, I am not endorsing them or making any representations about the value of the goods or services provided by them. They were chosen somewhat randomly and are intended to serve as examples to show various terms of service about which Internet users should be aware.