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The Problem with Every TOS You Sign

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Last month, a change to the Instagram terms of service (TOS), which was scheduled to go into effect January 16th, sparked controversy as it led many users to believe that photos uploaded to the system could be used in advertisement without payment. Fortunately, the controversy turned out to be much ado about nothing as Instagram not only clarified but backed away from the new TOS.

Still, it appears that at least some damage has already been done. Some figures estimate that Instagram may have lost as much as 25% of its users after the debacle and competitors, such as Flickr, are stepping up to snatch those users up.

But even if the impasse blows over, it’s just the latest in a long line of TOS-related controversies including Google Drive, Craigslist, Ancestry.com and many more.

However, the problem isn’t just with those sites and services, in fact, it isn’t limited to any one company or kind of company at all. The problem is with the Web itself and with the way we handle contracts.

As we discussed back in March, you sign a variety of contracts to run your site but the problem is that all of those contracts are horribly one-sided. They are all written and signed for the sole purpose of protecting the company that wrote it, not you.

This is something to keep in mind the next time you click “I accept” on a TOS, as you are giving the company you’re signing with an incredible amount of power and trust. Trust that may be misplaced. [Read more…] about The Problem with Every TOS You Sign

The Contracts You Sign to Run a Site

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Contract ImageThough running a website might seem like a solitary endeavor at times, the truth is that pretty much nobody does it alone. You’re dependent on other companies to provide you the services you need to get your site online and keep it going.

However, those services are never truly free. Even if you don’t pay for them with cash, you still have to surrender various rights and privileges in order to make those services work. Even a company with no nefarious intentions, legally, needs guarantees and permissions from you to function.

These permissions and promises are handled in the form of terms of services (TOSes) that these companies get you to agree to before registering. These TOSes, though rarely read, are fundamentally contracts that you can and will be held accountable to.

But so few webmasters think twice before accepting the TOS on a new service and even fewer think about just how many they’ve agreed to just to keep their site online.

So, rather than going through and trying to highlight every thing you’ve surrendered with a click on a TOS, I’m going to go over some of the more common types of services that people register for when building a site and what the TOSes for those services routinely include. The idea isn’t to tell you what you have done, but what you might have done and what you need to look for when reviewing a site’s terms.

1. Web Hosting

Of all the contracts you have to sign, the agreement with your Web host is probably the most important for your site itself. Your Web host is what gets your site online and makes it visible to the world.

However, to do that, your host needs a broad range of rights in your work, including your text, photos and other content you upload to the service. From a copyright standpoint, this includes a right to display, modify (create derivative works) and, if the host is a commercial one that will be displaying their ads along with your content, commercial rights to your work.

Nearly all hosts take these rights on a non-exclusive basis, meaning that you can post it elsewhere, but when these rights terminate (and the host can no longer use the work) is often a thorny issue as sometimes deleting a work is not enough.

Perhaps more worrisome than the copyright issues is indemnification, where you agree to pay any legal expenses that the host may incur for your actions. This can include any legal damages and attorney’s fees if your host is sued but also any other losses they suffer.

Generally, this is limited to anything you do in violation of their TOS, but some hosts broaden it to anything, meaning that even legal activity that the host gets sued for could force you to pay their legal bills.

Always remember that your host has to protect its interests and is going to do everything it can to protect itself from any legal issues that could arise from your account.

2. CMS/Blogging Platform

Unless you use a host that has a built-in platform, such as Blogger or Tumblr, you likely had to download and install your own blogging platform or other CMS, such as WordPress, Drupal, Joomla, etc.

Most major platforms are licensed under the GPL or a different open source license. These actually grant you a lot of rights to use the work, including for commercial purposes, for free and gives you freedom to modify it as you see fit.

However, you also make several sacrifices as well. For one, if something goes wrong and the software harms you in a way (losing your data, etc.) there’s no legal recourse. This is common in nearly all software licenses, not just open source ones. Also, if you make changes to the platform and distribute them, you, depending on the exact license, will likely have to distribute the source code of your changes and license them under the same terms.

These might be small prices to pay for a robust, blogging platform but they are still issues to consider.

3. Media Host

If you use a media host to store and display multimedia content, such as YouTube, Soundcloud, Blip.TV, etc. they have largely the same set of requirements as a traditional host (including copyright and indemnification). However, expect to give up more copyrights in the work as the more involved service needs greater permission to convert your work into a format that can be seen online. Likewise, they’re going to want more broad commercial rights to display ads.

However, you’re also going to have greater and greater limitations with what you can do with the service. Though all hosts will prohibit you from putting up illegal content (for obvious reasons), media hosts are generally more interested in preserving community standards, such as YouTube’s community guidelines. Failure to follow these guidelines can result in videos being removed, accounts shuttered and, if you were earning money from views, lost revenue.

With media hosts, especially those that are paying you, expect a lot more oversight into what you’re doing, both in terms of what their TOS allows and in their enforcement of it.

4. Social Networking

Social networking sites have many of the same issues of copyright and indemnification that other kinds of hosts have. This makes sense because it basically is another Web host with social elements.

However, with social networking comes a whole new slate of concerns related to privacy. There are serious questions with these services regarding how much of your data they have, who they can share it with and when and the issues aren’t going away any time soon.

Of particular interest is what social networks can share with third parties, including advertisers, who may be interested in the data for the purpose of delivering better-targeted ads. However, since most social networks maintain a presence across the Web, that issue does not end when you leave the site and, if you embed social networking elements on your site, could involve your domain.

As a result, with social networking, it’s not enough to think about your interests, but also the interest and privacy of your visitors as well.

Bottom Line

As overwhelming as all of this might seem, it’s important to remember that these are just a small part of the much bigger picture. In addition to these services, you also likely use email, instant messaging, play games, video chat, VOIP and more, all with different contracts to look at and agree to.

This is why it’s important to read through a TOS before hitting “accept”. Otherwise, you’ll have no idea what you are agreeing to and what implications that might have for you down the road. While these contracts are necessary for companies to be able to host and display your content, they’re also an opportunity for overreaching, either out of fear or malice.

You need to protect your interests and the interests of your readers when you’re registering for services because these companies will not do it for you. Their contracts are written to protect them, not you, and it’s important to never forget that.

Failure to do so could wind up being very costly and put you in a very difficult situation later on.