Update: Ancestry.com has re-revised its TOS to include professional genealogists again. Details below.
Of all of the lies told on the Internet, the most common by far is probably “I have read and agree to the terms of service.”
A terms of service (TOS) is, by its very nature, lengthy, legally-dense and tedious document that almost no one has the time, the expertise and/or the will to read. Most lawyers, at least of those I’ve talked to, don’t even read them.
So when there’s a controversy over something in a TOS, it can feel like a game of “gotcha” of slipping something in to trick the user. It’s also easy for these concerns to become over-blown or misrepresented. However, it’s also possible for companies to abuse their TOS take rights away from existing customers.
So how do you know what to expect when you read a TOS? Honestly, you can’t and two recent controversies can show just how difficult of a problem TOSes can be.
Google Drive and TOS Overreach
One of the problem that TOSes have is that they have to secure the rights in your work that they need to run their service, including anything they have to do behind the scenes and anything they may want to do in the future.
As a result, companies tend to overreach when drafting their terms. The goal being to protect them legally, protect their secrets and limit the need to alter the TOS later. While companies that do this usually have no evil intent, these issues can still cause controversy.
For example, Google recently launched Google Drive, a file storage and synchronization tool that puts user files in the cloud. The TOS for the service was quickly attacked, with some saying that it lets Google “Do Whatever It Likes With Your Files.”
At issue was a short passage in the TOS that says:
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.
The truth, however, isn’t quite so grand. The TOS limits its use of your files to “the limited purpose of operating, promoting, and improving our Services, and to develop new ones” and elsewhere in the TOS it reiterates that you own what you put in the service. In fact, the legalese itself is fairly boilerplate and, though I agree it is overly broad, follow-up analyses seem to agree that the TOS is not significantly more onerous than that of similar services.
In short, the TOS may have some flaws, but it doesn’t give Google the right to take your stuff and run.
However, this limelight on TOSes may do a great deal of good, especially since another case seems to highlight just how dangerous those agreements can be.
Ancestry.com Changes TOS, Cuts Out Professional Genealogists
Update: Ancestry.com has re-revised its TOS to include professional genalogists saying that “In a recent update, the Ancestry.com Terms and Conditions excluded “or professional” as part of the terms of service. This change was in no way intended to exclude professional genealogists from using Ancestry.com in a business or professional setting. Our legal team has reviewed the statement and has reinstated the original text to include “or professional” into Ancestry.com’s Terms and Conditions. We apologize for any misunderstanding.
Ancestry.com is a site that’s well-known and well used by both professional and amateur genealogists to help people trace their family tree. However, that good relationship with professional genealogists may be in jeopardy following a controversial change to the site’s TOS.
The change is actually very subtle, but potentially important. The site’s old TOS, as pulled on Oct. 6, 2010, read:
You are licensed to use the Content only for personal or professional family history research, and may download Content only as search results relevant to that research.
However, the more recent TOS, which is dated March 24, 2012, reads as follows:
You may access the Website, use the graphics, information, data, editorial and other Content only for personal family history research.
In short, professional genealogists, who are paid to do research for their clients, have been removed from the TOS and are likely violating it by charging for their services. This has left many professionals wondering if they can use the site at all.
Additional changes to the TOS seem to further the problem by making all resale a violation of the TOS, not just wholesale scraping and copying.
Though the changes are now a month old, the controversy is just no surfacing in large part because it seems so few were aware. Though it’s unclear if Ancestry.com sent out an email about the changes, the announcement of the new TOS was marked on the site only by a red “NEW” next to the TOS link at the bottom of the page (see below for actual-size image).
However, legally, notification isn’t very important because, as per the Ancestry.com TOS:
Ancestry has the right, at its sole discretion, to modify this Agreement at any time. Changes will be posted on the Website and by changing the date of last revision on this Agreement. If any portion of this Agreement or any change to the Website is unacceptable to you or will cause you to no longer be in compliance with the Agreement, you may cancel your subscription by following the instructions in this Agreement. Continued use of the Website now or following posted notices of changes in this Agreement means that you have accepted and are bound by the changes.
Unfortunately, this kind of clause is not uncommon in TOSes on the Web. In fact, most TOSes have them. This means that, by signing the TOS you are also agreeing to every future version of it they create, including ones that make your activity a violation.
The Problem is the TOS
The end problem in all of this is the concept of the TOS. Companies, in order to create services you want to use, need to secure rights over your work and be able to lay down rules for its use. However, the method by which companies have you agree to those terms is inherently unfair.
Even if a user reads the TOS, finds an agreement that is completely acceptable (without any overreaching) and agrees to it, there’s still the possibility they could change the agreement without any warning and minimal notification.
In short, between overreaching TOSes and agreements that can be changed unilaterally at any time, every time you click “I agree” it’s an act of faith to the company, whether you read it or not.
However, there’s no easy answer to this. TOSes are contracts and, as such, they have to be written like contracts. Further, since the company is writing it and you have only the choice of accepting or declining it, they have an advantage. Finally, since they have rights and assurances they need legally, company’s have to protect themselves using their TOS.
Basically, short of some kind of legislative solution, there likely won’t be any answers or improvements. All we can do is click and hope.
As we put more and more of our data into the cloud. TOSes are going to be a greater and greater importance to us. My hope is that issues such as these prompt people to pay closer attention to them and think about the challenges they create more.
It’s only if users begin to demand and expect more from company’s in their TOSes can we expect any meaningful change. Still rewarding companies with good TOSes and punishing those with bad ones may not be enough and we may need to pressure legislators to act as well.
In the end, this isn’t going to be an issue with an easy resolution. There’s a lot of work and, most likely, a lot of pain ahead on this front before any progress is made.