The Fark Licensing Controversy

Story Updated (See Below) – Digg Users: Digg Here 

Ryan McGinnis of Backing Winds posted an article detailing copyright policy of news aggregator Fark, which just underwent a major redesign.

According to McGinnis, when the site was redesigned a new legal policy was introduced one that lays claim to the copyright of all works posted to Fark.

Though it appears that the policy is nothing new, the Web Archive shows the text being on the page as far back as December 2005, his analysis of the current policy is correct. Fark does claim the copyright of any and all material posted to the site.

This is a stark contract to most other sites that only take what the implied license grants them, the right to republish the posted material on their own site. It’s a very powerful rights grab that may be caused by poor wording but, nonetheless, could have very strong impact on copyright holders posting their work on the site.

What the Policy Says

If you read the Fark legal policy, under the header of “Copyright Notice” it says the following:

Fark.com is the legal owner of all copyright interests of Fark.com content. Each and every submission to Fark.com carries with it an implied assignment of the entire copyright interest in the submission. In exchange for the content and publication of that submission on Fark.com, Fark.com grants back to the submitter a non-exclusive, non-transferable and royalty-free license to republish that submission in any and all forms.

Compare this, for example, to the Terms of Use for bulletin Board service ezboard (see item 5).

ezboard.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, “Content”) that you post to the ezboard Services. After posting your Content to the ezboard Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying or publishing (“posting”) any Content on or through the ezboard Services, you hereby grant to ezboard.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the ezboard Services.

It becomes clear that Fark’s copyright license, as it is written, is actually reversed. Instead of giving itself the limited license to reproduce the work, which it needs in order to display the work, it takes the entire copyright and then gives the user the limited license.

However, that isn’t the only problem with Fark’s policy. It makes several missteps when it comes to copyright law at large.

Problems with Fark’s Policy

Fark’s policy, as strong as it may appear to be, is most likely invalid. U.S. Copyright Law makes a policy such as this completely impossible.

See Title 17, Chapter 2 § 204(a) – Execution of transfers of copyright ownership

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

In short, a copyright can not be transferred without a written and signed contract between the two parties. Simply having a policy that states “You are signing your copyright over to us” does not meet that requirement. You can have people give up certain rights, and many are given up by the implied license, but you can not force someone to give up their actual copyright without a signature.

However, there are also issues with the notion that there is an “implied assignment of the entire copyright interest in the submission”. Though the exact extent of the implied license of comments, forum posts and other submitted works, is up for debate, most agree that it does not extend to full copyright ownership.

It is clear that, at the very least, the text needs to be rewritten. Fortunately, Fark has already expressed an interest in doing exactly that.

What it Would Mean

The question remains, if Fark’s policy were found to be valid and remained unchanged, what would it mean?

First, you would not be able to sell your work or give anyone else the right to post it. If you posted a work to Fark, you could not legally sell it to a publisher, to a record label or to a movie studio. You could include it in a book that you yourself made, but you could not sell the copyright or even your right to republish to anyone else. You and Fark would be the only people allowed to publish the work.

Second, Fark can do pretty much anything they wish with the work. They can compile it into a book, CD or video and sell it, they can license it to other sites and redistribute it as they see fit under whatever licenses they see fit.

Third, any Creative Commons License you originally placed the work under would be invalid. Since you are no longer the copyright holder, you no longer have the right to set the licensing terms. This could lead to trouble for anyone that reuses your content under the terms of the license but later runs afoul of Fark’s new licensing scheme, whatever it might be.

Finally, though you have the right to republish your own work, since that right is not perpetual, it can be ended at any time. This can mean that either Fark can terminate the license or they can sell the rights to someone else who will do it instead.

This makes it fortunate that the copyright license Fark is presenting is, most likely, completely invalid. If it were valid, it would create a lot of headaches for copyright holders posting their works to the site. It makes it even more fortunate that Fark is looking to change the license and will, hopefully, have a new one up soon.

Fark Responds

In an email from Drew Curtis, the owner of Fark, he reassured me that of the following:

We’re not, we’re asking for a non-exclusive right to republish. Submitters still own their submissions, we’re asking for reprint rights in case we can use it. We have no intention of acquiring ownership of submissions.

He went on to say that:

“We don’t really have any plans for anything. In the event we did use any content we’d attribute it, in fact I’ve gone out of my way in the past to make sure that whenever media outlets have requested use of Fark photoshops that they contact the owner directly and not republish unless they receive permission from the owner him/herself.”

This certainly is very reassuring and it makes it seem as if it is a case of badly-written license copy, not one of malicious intent. Curtis has asked for input from myself and other in rewriting the copy and I have already provided my input.

We will have to see how and if the terms of use change.

What To Do

Even though the license, most likely, would not be considered valid and it seems as if Fark does have genuinely good intentions, it is still worthwhile to take a few steps to ensure that there are no copyright mix ups on Fark or any other site.

  1. Post Things in Links: A license only applies to what actually appears on the site. Rather than post your long essay or your photos, post links to them. No license can be claimed to anything not hosted on the site.
  2. Post Only What You Can Lose: Only post what you are ready to give up at least some rights on. I doubt that there will be much interest in reusing general conversation but essays, photos, videos and other works are more likely to become targets for repurposing. Be wary of what you post and realize that, even under the best of circumstances, you will surrender some rights to them unless they are posted on your site.
  3. Monitor Your Works: As always, monitor your works and be prepared to act on any infringement that you see. Be mindful of your rights and be prepared to defend them if needed.

All in all, if you take reasonable steps and realize that the copyright license is there and what it says, you’ll probably be safe. The important thing is to simply be aware and keep monitoring the situation.

Conclusions

All in all, I don’t think that Fark is likely to do anything abusive with this copyright policy. It has been in effect for well over a year and nothing has happened to date. By all appearances, it just seems that it was a case of poorly-written license copy that ended up biting both Fark and some of its users in the end.

Furthermore, it appears that it will be rectified very soon.Still, the entire episode highlights the importance of looking at a site’s policy pages before posting anything of value to it. You need to be aware of the rights that you are giving up by participating on any kind of community or forum so that you can be aware of what the rest of your rights regarding the work are.

It makes good sense. We read contracts before we sign them, why not take a few moments and read the terms of use on a site before posting? I admit I am as bad as most about this, but it is a habit that I am working to change.

At the end of the day, this is most likely a learning experience. Nothing bad has happened and, almost certainly, nothing bad will happen, but it shows why everyone should be more careful with where they post. The danger is clearly there.

Update: Just before this story went up, Curtis emailed me with a new draft of the text that addresses all of these issues. Once the new text is looked at by an attorney, he plans on using it.

Update 2: This story has now appeared on Fark. So, with that in mind, welcome Fark visitors! Also, a big congrats goes out to Media Temple for keeping this site alive. Under this kind of load, my old host would be dead and buried.

11 Responses to The Fark Licensing Controversy

  1. WootWoot says:

    Post Things in Links: A license only applies to what actually appears on the site. Rather than post your long essay or your photos, post links to them. No license can be claimed to anything not hosted on the site. Last I checked, Fark does not host any of the photoshopped pictures, so since the pictures are not hosted on fark, they would not be able to claim copywrite. I'd be more worried about what imageshack has to say about copywrite.

  2. EH says:

    So weird. Doesn't Fark have a lawyer for these things?

  3. Ryan says:

    I think a lawyer whipped up the original copy. He/she could probably be sued for malpractice.FARK relies a lot on volunteer work. Most of the people who work on/for the site aren't paid anything. Heck, Drew's original reaction to this whole issue was to ask the FARK users how to change it to make it say what he wants it to say. I think a FARKer lawyer finally volunteered and stepped up to help him, but he was extremely nervous in doing so, since screwing up on something as important as this can mean a major malpractice suit and/or disbarment.

  4. WootWoot says:

    Post Things in Links: A license only applies to what actually appears on the site. Rather than post your long essay or your photos, post links to them. No license can be claimed to anything not hosted on the site.

    Last I checked, Fark does not host any of the photoshopped pictures, so since the pictures are not hosted on fark, they would not be able to claim copywrite. I’d be more worried about what imageshack has to say about copywrite.

  5. Boing Boing says:

    Fark’s copyright policy stinks — UPDATED…

    Fark — home to many photo-mashup contests — has a new (?) copyright policy: everyone who posts to Fark agrees to assign all copyright in their work to Fark (Fark then gives the posters back the right to use their work on personal projects, but not to…

  6. Boing Boing says:

    Fark’s copyright policy stinks — UPDATED…

    Fark — home to many photo-mashup contests — has a new (?) copyright policy: everyone who posts to Fark agrees to assign all copyright in their work to Fark (Fark then gives the posters back the right to use their work on personal projects, but not to…

  7. EH says:

    So weird. Doesn’t Fark have a lawyer for these things?

  8. Ryan says:

    I think a lawyer whipped up the original copy. He/she could probably be sued for malpractice.

    FARK relies a lot on volunteer work. Most of the people who work on/for the site aren’t paid anything. Heck, Drew’s original reaction to this whole issue was to ask the FARK users how to change it to make it say what he wants it to say. I think a FARKer lawyer finally volunteered and stepped up to help him, but he was extremely nervous in doing so, since screwing up on something as important as this can mean a major malpractice suit and/or disbarment.

  9. [...] was a very eventful day for this site. The article about Fark’s Copyright Policy made an appearance on the front page of Fark.com. Shortly after that, it was featured as an update [...]

  10. [...] the controversy over its copyright policy last week, Fark has changed the wording of its policy to correct the errors in the first [...]

  11. [...] make it clear, Facebook, nor any other TOS that I have seen (save the extremely misguided Fark license), tries to actually grant itself copyright ownership of the work. They are trying give themselves [...]

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