One of the points that is often overlooked in the saga is that TwitPic first changed its TOS on May 4th, not to have anyone notice the change until May 10th, almost a week. Considering how egregious the change was and how popular TwitPic is as a service, it’s worrisome that it wasn’t caught earlier.

However, the truth is that most people don’t read the terms they agree to and, when they do, they likely don’t understand what they are agreeing to due to the language used and the sheer size of many of the TOS pages.

TwitPic may have illustrated the danger, but the problem is larger than one site or service. Instead, the problem is one faced by almost the whole of the Web and, as such, needs to be addressed accordingly. However, fixing it won’t be an easy task and involves trying to address multiple issues at once, some of which don’t seem to have any simple answers.

Still, with an issue this important, and one that goes well beyond copyright law, it’s important to at least make an effort and start generating ideas to solve these issues.

The 3 Problems With Nearly Every TOS

No matter how little a company attempts to grab rights or be sneaky with their terms of service, the nature of having a long, legalese-filled contract between the user and a service they want to use creates a slew of problems that are difficult to overcome.

To make things easier, we’re going to break up the problems into three key issues that would need to be addressed in order to make the TOS signing process both fair and orderly.

1. Most people don’t read the terms of service because they are too long and mostly the same.
2. Those who do often don’t understand what they are agreeing to due to the language.
3. Even if one does read and understand the TOS, the terms often change, usually without notice.

These issues create an environment where nearly everyone, lawyers and laypeople alike (myself included) rarely give the proper amount of attention or understanding to the terms they agree to.

So how do we address these issues? Lets take a look at them one at a time and try to understand what, if anything, can be done.

Problem 1: TOSes are Too Long

Apple’s iTunes is famous for it’s unbearably long terms of service, clocking in at over 15,000 words (Note: An average article on this site is between 800 and 1,200 words), but it is far from the only service with long a long TOS.

Facebook, for example has over 4,000 words in its main TOS, not counting its various other TOS pages. However, Facebook merely ties Google, which has almost the same number of words in its main TOS (once again, not counting the TOSes for many of its various products).

To make matters worse, much of the content in these terms are stock. If you put either TOS into a standard plagiarism checker, you’ll find matching text in dozens, if not hundreds, of other sites. But even if the exact text isn’t the same, the meaning often is.

There needs to be a way to cut through the stock elements of a TOS and parse it down to the important “need to know” information.

On that front, Java Cool Software created a produced called EULAlyzer, which is designed to do something similar but for EULAs that come with software, not Web service terms of service. Though my testing found it to be a poor fit for this type of issue last year, it certainly is a proof of concept that something like this could be made and may help raise red flags at appropriate times.

While not a complete solution, such a tool, especially if it were Web-based, could help cut through the cruft and identify key issues that the user needs to be aware of before clicking “agree”.

Problem 2: TOSes are Too Difficult to Understand

Even if your average TOS were reduced in length enough to make the average user sit through it, understanding what it meant would still be a challenge for most.

The reason is that most terms of service are written by attorneys for attorneys. They are written in legalese in the event of a legal dispute. Unfortunately, this means that the confusing language and terminology has to be in there for the TOS to do its job, however, that doesn’t help users make heads or tails of what they are agreeing to.

A more robust solution to this problem would call upon service providers to actually make their terms more accessible. For example, following a Creative Commons model of making the licenses machine, human and lawyer-readable at once. While that would be difficult, especially considering all the areas that a TOS has to cover, but creating this system would enable machines to parse terms easily, humans to read them and lawyers to feel confident in the protection they offer.

Another solution, and another way the Creative Common model may be able to help out, is to create a series of “stock” licenses that are explained on a third-party site. Then hosts and service providers would be able use those licenses and add their own terms as needed.

For example a host could say that: “Usage of our site is provided under [License Name] and is subject to those terms as well as the ones below.”

If the main terms were reasonably well explained, the rest, most likely would be shorter and easier to understand as well, making the TOS both much shorter and easier to read.

All in all, companies will be reluctant to go down either of these paths. The first requires additional effort and work, all for something few feel is important. The second would save costs in drafting a TOS, but requires turning over a key legal document to a third-party. In short, neither solution is likely to be adopted, though they may still be ideas worth exploring.

Problem 3: TOSes Change Routinely

Of all the problems on the list, this is the most “solved” one. Simply put, a terms of service is not likely to stay the same very long as they are updated very routinely. However, few users have the time, energy or even the awareness to follow along with the changes and make sure they still agree.

On that front, the EFF launched TOSBack, a terms of service tracker that monitors TOSes for changes and reports on what’s different. Unfortunately, the system is limited to just 56 sites and isn’t always perfect. For example, the PayPal link doesn’t appear to be working.

What may be more practical is existing change detection systems such as ChangeDetection.com, which monitor webpages for alterations and report back on any differences it spots.

However, both of these systems are prone to false positives. If a company as much as fixes a typo in their TOS, an alert is triggered. This was a problem I had noticed back in 2009, when the service was launched.

While these settings can be tweaked to reduce false positives, obviously the better system is for companies to notify users of any important TOS changes. However, since most terms of service don’t require companies to do that, few do and selling the idea is going to be an uphill battle. Even good companies don’t want to risk turning customers away with a greater (mis)understanding of their TOS.

Bottom Line

Obviously, this isn’t going to be a problem that we can fix overnight. The Web has been built on the current TOS system but, through a combination of new laws and a tidal wave of new services, the TOSes have simply grown too long, too confusing and too numerous to be of much practical use to users.

Fixing this won’t be easy and will require the cooperation of many different parties, but if we can at least improve the situation, we’ll have a much more educated and much more sane Web, one where incidents like the TwitPic case are incredibly rare

It may be a dream, but it is a nice one to have.

The change, which was first noticed on May 10th, though had been modified on May 4th, exploded across Twitter and the blogging world resulting in hundreds of tweets and prompting at least some TwitPic users to cancel their accounts and delete their photos.

Specifically, Twitpic’s revision said that users:

may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content you have uploaded to Twitpic.

This controversy caused the company to very quickly change its TOS to “clarify” the rights that its users have over their content. The terms were changed to read as follows:

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

However, to make matters more complicated, TwitPic, the day after the second TOS change, announced a new deal with WENN, a company that sells various types of media to news outlets.

According to WENN, the deal is very limited. WENN’s CEO Lloyd Benny said that, “WENN is only permitted to distribute images posted by a very small number of celebrities, so 99.99999999% of TwitPic users remain totally unaffected by the arrangement.”

Still, this hasn’t done much, if anything, to calm user’s fears about TwitPic and the rights its claiming in its uploader’s works. Though the company says it’s taking these steps out of the interest of their users, many are seeing it as a rights grab and nothing more, especially considering the original TOS simply said, “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites. All images uploaded are copyright © their respective owners.”

However, I think that most viewers are missing the bigger picture on this issue and, while what TwitPic did is certainly worthy of attention, it’s far from the only service to make a rights grab for your work.

In fact, there are many that are far worse.

The TOS Problem

Under copyright law, as the creator of original content you retain all of the rights in your works once they are fixed into a tangible medium of expression. However, if you want to share those works, such as images, on the Web by putting them on third party services you must first grant them a limited license to use the work in various capacities.

But while this license is a legal necessity, some companies abuse this necessity and the fact that very few read the terms of service to grab far more rights than they actually need. In fact, in many corners of the Web, this is par for the course.

Looking at TwitPic as an example, their current TOS allows them to use the work in almost any capacity related to their service and to sublicense or transfer that license to other parties, who in turn can use the work in any capacity related to their business.

Though you can terminate this agreement by deleting your images, TwitPic also reserves the right to continue using them for a “commercially reasonable” time after ward and that any sublicenses TwitPic grants may be irrevocable.

In short, under the current, “fixed” terms, TwitPic can still do pretty much whatever they want with your image, including selling licenses to WENN. The only thing that really changes is that you are free to license the images yourself, basically competing with TwitPic and their partners over your own work.

However, TwitPic is just a convenient example of the problem. As TheNextWeb showed, nearly every other photo sharing company out there has almost identical language buried in their TOSes.

In short, leaving TwitPic doesn’t necessarily solve the problem and, sometimes, can make it even worse.

The Big Picture

The problem with TOSes is fairly simple and goes well beyond copyright. There’s a natural imbalance to them that can not be resolved easily.

The problem is that, when it comes to these terms, for the company it is in their best interest to ask for and get all the rights they think they can get away with. Since few people actually read the terms they are agreeing to, that is often quite a bit.

However, even if a company is being completely honest and straightforward about its terms, it needs to get the rights for what it wants to do today and the rights for what it thinks it might want to do later. That has to consider the possibility of selling the company, bringing new services online and so forth.

Unfortunately, a lot of the rights a company might genuinely need in that preparation are the same rights that one might use if they were planning on reselling or otherwise misusing the content that’s being uploaded.

For example, it makes sense for hosts to ask that the rights they get be sublicenseable because they might sell the company and need to transfer those licenses. However, such terms can also be used to sell works to third parties.

To make matters even worse, most terms of service have a clause that enables the provider to change the terms at any time, for any reason, without any notice and have you agree to it. Theoretically at least, this means that the terms you agree today could be anything tomorrow.

However, we trust our partners and providers to not abuse these rights because, in a word, it would be wrong. Unfortunately there is very little legally stopping any company from abusing their terms of service. This applies not just to photo sharing services, but everywhere you put your work on.

The Role of the DMCA

One strange side element to this, and one reason hosts (at least those in the U.S.) may be unlikely to abuse the rights they are often given in their terms, is because of the DMCA’s safe harbor provisions.

To recap, the DMCA safe harbor provisions protect hosts and services like TwitPic that receive and provide access to material uploaded by users. In these cases, as long as the host has no knowledge of the infringement, doesn’t profit directly from it, has no editorial control over it and works to remove infringing material when appropriately notified, they can not be held liable for infringement.

However, whenever a host gets in the business of re-licensing works, most likely, these protections disappear. If, for example, an image uploaded to TwitPic is an infringing work and that image is licensed out to others, it’s at least possible TwitPic could be held liable.

Though much of this is untested, YouTube’s licensing of content to outside partners is an issue of contention in its ongoing battle with Viacom, though that case deals with blanket licenses, not ones for individual works.

Still, most hosts are going to think twice before they even risk losing their DMCA safe harbors, even on just a few works, especially when there is no practical way to patrol their service and stop infringement proactively. There are many ways that abusing the TOS could go well beyond what those safe harbors protect and that, in turn, may help keep users safer from TOS abuse.

Bottom Line

The issue of overreaching terms of service is practically an epidemic online. Companies that don’t overreach on their terms are few and far between. While this doesn’t necessarily make those companies or services that do evil, it does mean that they are protecting their interests extremely well, often at the expense of yours.

There are, unfortunately, no easy answers to this problem. Though hosts could adopt Creative Commons Licensing as a requirement of using the service, that extends rights to the rest of the world as well as the host, something many won’t be comfortable with.

There is a clear need for greater simplification and clarity in TOS language, especially as it relates to copyright. Unfortunately, I don’t think this initiative is going to come from hosts as they have the most to gain from the current system.

Even if they don’t intend to abuse the rights they’re given, they don’t want too many questions about the license they force their uses to give them and why they need what they ask for.

Unfortunately, it seems that very few users are willing to ask the questions regardless.

The “average” article on Plagiarism Today is between 800 and 1,200 words. While they are certainly longer articles for blogs, they have nothing on the license agreements for many of the most popular services.

YouTube’s Terms of Service has a whopping 4,076 words. Facebook’s has 3,839. Even WordPress.com’s has some 2,924 words, though that includes the “gist” section that summarizes the terms.

Reading through these license agreements can be a major pain, especially considering that they are written almost exclusively in legalese and much of the content is just stock. Separating what is important and unique from what is in every agreement can be very difficult, even for attorneys.

However, an application called EULAlyzer claims it can help. Though it is aimed more at helping you make sense of the license agreements you have to sign when installing software, it can work on any license agreement by drawing your attention to areas that you may want to read more closely.

But does it work? I decided to put it to the test.

How it Works

The idea of EULAlyzer is that you take the agreement, copy it into the program and let it scan it for words that it considers interesting. You can then jump to the relevant passages in the agreement and read them more closely, without worrying about the less interesting parts.

This can, supposedly, save you time when trying to look through a license agreement, or any agreement for that matter, and better understand the most important elements.

All in all, the app is pretty straight-forward though the app does have a pro version for $19.95 that automatically scans EULA’s of any software you install, similar to an antivirus but for license agreements and one that only warns you of issues, leaving the final decision up to you.

All in all though, EULAlyzer doesn’t do anything that you can’t do with the find feature on your computer, but it has knowledge of what to look for built in and that, in turn, can be very helpful, especially to a layperson, when deciding what to look closer at.

However, for the purpose of this test, we’re taking EULAlyzer out of its element, software licenses, and instead looking at it the terms of use for various Web sites, namely YouTube, Facebook and WordPress.com.

The Tests

The first test I did with EULAlyzer looked at the terms of use for YouTube. EULAlyzer found four keywords of interesting including “Advertising”, “Third Party”, “Web Site Address” and “Without Notice”.

The advertising warnings were fairly mundane, all being mentions of YouTube’s well-known advertising program. The third party warnings were more interesting, alerting to how YouTube is protecting itself from the action of third parties and linking to them, but once again not interesting. The website address links were more dull, just linking to other TOS-related pages but the without notice links were extremely useful as it alerted me to changes that can be made without disclosure to me, including changes to the terms themselves.

While this was helpful, there was no mention of licensing or YouTube’s rights over content uploaded at all. Needless to say, this isn’t an issue routinely encountered with software but is a major deal with Web services.

My test with Facebook met with similar results. It identified three worrisome keywords, “Advertising”, “Promotional Messages” and “Third Party” though all three were fairly mundane, though the “Advertising” section did draw attention to Facebook’s privacy settings, an issue they have struggled with. Once again though, no mention of licensing or how your content will be used nor any word on termination of the agreement.

Finally, WordPress.com produces the same keyword matches as YouTube but with significantly fewer results under each match and none of them particularly worrisome. Once again though, no mention of licensing your content or termination of the agreemeent.

The Results

Though I found EULAlyzer helpful with YouTube and Facebook, it didn’t cover all of the bases. This is due to the fact that it is geared toward analyzing software license agreements, not website agreements, and the different needs they have. Still, it was able to highlight some of the better-known controversies involving both YouTube and Facebook’s policies and anyone using the software correctly would have known about the issues.

That being said though, relying on this application to analyze EULAs for web services would be a huge mistake. You’d have to do additional searches for keywords such as “licensing”, “copyright” and “termination” to make sure that you had the complete picture. However, if you know the keywords to look for, you can just use the find feature in your browser to do the search by hand. The only difference is that EULAlyzer also does a decent job ranking the concerns, highlighting areas where you should pay more attention.

So, even though it was incomplete, it was still somewhat helpful. However, there isn’t a lot of reason to use it consistently with Web EULAs at this time. Instead, it should probably stick to its native territory, software agreements.

That being said, I don’t see why it couldn’t be modified, perhaps with a tweaked version, for this purpose. The idea is still very much alive.

Bottom Line

I can’t encourage the use of this for the kinds of license agreements most content creators are worried about, still, for software EULAs it can be a great tool and, with some tweaking, it could be very useful for this purpose too.

All in all, this app is a great idea and, considering that its free, I think it should be on every legally-conscious user’s machine, if nothing else than dealing with those pesky software EULAs.

So, while you shouldn’t rely on it exclusively for any license agreement, especially a Web service one, you should definitely give it a shot as it can help highlight areas of concern and let you make better-informed decisions.

1: Facebook Backtracks Under Community Pressure, Goes Back To Old ToS (For Now)

Facebook, after receiving a great deal of pressure from its users, has decided to return to its old TOS. Its new TOS, announced two weeks ago, had caused a great deal of controversy when it removed a clause that allowed users to terminate their copyright license to Facebook by simply removing the work, thus offering them a perpetual license to use the content, even after the user was gone.

Facebook has apologized for the TOS and has created a new group to begin working with members and seek feedback on the next terms of service. This is the second major incident, the first being Beacon, where Facebook has been forced to back away from a change due to user uproar.

2: Video Game Biz Still Targeting Canada Over Mod Chips

The International Intellectual Property Association has (again) asked the U.S. Government to take action against Canada over, among other things, mod chips in Canadian video game systems. It believes that mod chips, which allow users to play games that are either out of region or pirated, are not taken seriously enough by the Canadian government and wants the U.S. to add the country to a “Priority Watch List” along with countries such as Mexico, Russia and China.

Though it is unclear exactly what impact this would have, it is unlikely to succeed as the previous administration did not comply with a similar request and it is unlikely that the current will either.

3: Mozilla backs move to decriminalize iPhone jailbreaking

Finally today, the Mozilla Corporation, the not-for-profit behind the Firefox Web browser, has thrown its support behind an exemption for “jailbreaking” the iPhone as well as other mobile phones. Mozilla joins the EFF, Skype and others in backing the exemption to current anti-circumvention laws.

The United States Copyright Office is currently accepting comments and feedback on potential exemptions to the law and plans to institute changes later this year.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

Article Updated: See Below On Sunday, the Consumerist posted an article about Facebook’s revised terms of service (TOS) and a very notable change in how Facebook handles your content.

According to the article, Facebook removed a portion of the TOS that allowed users to terminate Facebook’s license to your uploaded work by simply removing it from the site (save archived copies). This kicked off a firestorm of controversy and resulted in not one, but two responses from Facebook clarifying their terms.

However, despite the clarifications, groups on Facebook continue to spring up protest the TOS changes and many users are still concerned about the TOS changes. As such, I wanted to take a few minutes today to talk about the changes and what they means as well as answer some of the more common questions that I’m seeing.

What Happened?

As with most companies, Facebook’s TOS has a clause in it that allows them to update it from time to time. These updates are fairly common as laws and technologies change. It is not uncommon for sites to change their TOS regularly as even trivial changes to the backend can change the rights they have to clear from their users.

As a part of most TOSs, at least for sites that host content at the direction of the user, the site clears the rights they need in the work in order to make their site work. This usually includes some form of non-exclusive copyright license to display, reproduce, edit, etc. Though the exact terms vary from site to site, they usually pertain to the function the site is supposed to serve.

However, typically these terms have some form of termination. You can end the site’s right to use your work by deleting it, closing your account, drafting a letter or taking some other step to opt out. In Facebook’s recent update, they removed that clause. Thus, the collection of rights that they claim to the items you send/upload through them remain with them even if you delete your account, at least within theory.

Facebook, in its TOS, gives itself “irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute” the work. It is a very wide swath of rights that many would be right to worry about giving away perpetually.

Previously, one had been able to “expire” the license by simply removing the content. With the change, that element of the license is gone, making it unclear how one would prevent Facebook from legally using the work of its users in a way that they didn’t intend.

Why Did Facebook Do That?

According to Facebook’s second clarification, it was to make the TOS “more consistent with the behavior of the site”. Specifically Facebook cites situations such as messages, wall posts and other activities that take place on the service that may need to survive past when an account is terminated.

For example, according to Facebook, if you send a message to someone and later delete your account, that message should stay in that user’s inbox, Facebook points to email, which follows a very similar formula. In that case, if you delete your Gmail account, the messages you sent to your friends don’t disappear. However, since Facebook is wholly self-contained, it may need to secure those rights to continue storing and displaying those messages.

It is unclear at this time why Facebook didn’t either A) Begin with the current TOS or B) Clarify the new one to only impact the items that needed such preservation. After all, it seems that most users are primarily concerned about their photos, videos and personal information as opposed to their notes, messages, etc.

Is There Anything We Can Do?

According to the TOS, your privacy settings trump everything. If you set your images, videos, etc. to private, Facebook’s use of them will be limited to what you say can be done.

Theoretically, if you wanted to remove your account, you could set your privacy settings as high as possible, limiting everything to being viewed by just your friends, delete all of your friends and then delete your account. Though Facebook may be able to continue displaying those some things to your friends, depending on how it was sent/uploaded, they should not be able to use them publicly elsewhere. Anything you currently have available to the public at large could be used, at least legally, by Facebook even after you depart if you don’t change that setting.

What Does it Mean Realistically?

With TOSs, there is always a certain amount of base-covering involved. Just because a company gives itself the rights to do something in its TOS does not mean it will ever do so or that it is even likely. For example, many sites give themselves the rights to use a work for “promotion” of company. That doesn’t mean that videos uploaded will be turned into commercials.

If you trust Facebook to keep their promise not use your content in any way you don’t want, then it means very little. If you don’t trust Facebook or think you might not trust them in the future, than I would be wary about uploading anything to the site you aren’t comfortable licensing out in broad terms.

However, if you don’t trust Facebook, it might be worthwhile to evaluate if you want to use the service at all.

Do They Own User Works?

There has been a lot of confusion about the difference between a license and a copyright.

When you create a work for yourself, you become the copyright holder in that work. You, for the lack of a better term, “own” it. You do not cease being the copyright holder unless you actively sign over your copyright to it through a copyright transfer.

When you agree to a TOS, such as Facebook’s, you are granting the site a license to your work. You are giving them permission to do certain things with the work, such as display it, modify it, etc. The site needs those rights to do its desired function, share your work.

Giving a license to a work is NOT the same as giving up your copyright. Though licenses can be very broad, such as Facebook’s and even exclusive, which Facebook’s is not, with a license you are still the copyright holder of a work. The only thing that has changed is that the site can now use the work in ways that, without said permission, would be infringements.

For example, with the Facebook TOS, you can still put your images on other sites, sell them, make new works from them, etc. However, you can not try to sue Facebook for infringement because they didn’t pay a license fee or because they are using your work in your gallery. After all, you have given Facebook permission to do all of those things.

To 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 the permissions they need to do their job without fear of legal action. The question is whether they give themselves too many rights, how those rights can be revoked (if possible) and if the rights are exclusive (which they are only on the rarest of occasions).

It’s important to read TOSs carefully for that very reason.

How do other sites behave?

I’ve noticed over the years that sites have become more and more aggressive about giving themselves rights in their TOS. Users, for the most part, haven’t noticed as the TOSs have grown in length and given the various sites new rights. This is especially true of all “user-generated content” sites.

Facebook’s license may be worrisome but it is far from alone and, in general, there has been little public interest in doing anything about it.

This time last year, almost to the day, I started a series called TOS Showdown. Unfortunately, the feedback on it was so overwhelmingly negative that I stopped it after just one entry, namely the comparison of video sharing sites. It was a time-consuming project and didn’t seem to be worth the feedback I got.

However, in light of this “scandal” I am considering bringing it back and would love some ideas/nominations for sites to look at. Social networking ones, blog hosts and podcasting sites are good choices, but are there more?

A Thought on Applications

Facebook adds an extra challenge that hasn’t even been covered in any meaningful way.

Facebook has its own TOS, but so does nearly every single application and service that you use within it. Every time you add an application, whether it is a game, a slide show generator something else, you not only re-agree to Facebook’s TOS but to that application’s TOS.

There are countless apps on Facebook, each with their own terms. Even if Facebook is good natured in how it uses the rights it is granted by its users, who is to say these app creators will be? Also, who is to say that their terms aren’t far worse than anything Facebook has ever put in its TOS?

This is a big part of why I block nearly all app requests and only add one after I’ve had a chance to review it. I strongly encourage everyone to do the same.

Bottom Line

The bottom line though is that Facebook is only doing what it feels it has to in order to protect its legal interest. Does it claim a wide range of rights? Yes. Does it offer a clear way to revoke them? No. If you trust Facebook, this isn’t an issue at all. If you don’t, then it’s probably time to begin thinking about an exit strategy.

Personally, I think the odds of Facebook doing anything too uncouth with a user’s content is slim to none. Facebook simply has too much to lose if users begin to get upset enough to leave.

However, this doesn’t mean that I’m going to start uploading my new novel or masterpiece paintings any time soon (not that either exist). Facebook, as with all such sites, should be reserved for works you don’t care too much about the rights in as you’re going to have to give up a lot just to get the work online through them, even under the best of circumstances.

I urge caution when uploading to Facebook, but then again, I urge caution when uploading anywhere…

Update: Feb. 18

Facebook has announced that it has reverted back to its former TOS. According to a report on TechCrunch, the site is also working with its members, creating a group for its bill of rights, where it hopes to get feedback about future TOS changes.

Obviously this move should do a great deal to calm everyone down, even though Facebook has also promised a “substantial revision” to the TOS in the next version.

However, far too many people learn too late that agreeing to a TOS is not only a binding contract, but that those contracts often force you to waive rights in your work that, otherwise you’d never give up willingly.

So, in the spirit of the DMCA seven series I did previously, I’ve decided to start looking at the TOS agreements of popular sites on the Web and work to find out what rights you give up and what you can do about it.

This week, we’re going to start with video sharing sites, some of the most popular, and controversial sites on the Web for sharing content.

TOS Link: Terms of Use
Rights Granted: “…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.”
Sub-Licensable: Yes
Revokable: Yes
How to Revoke: Delete Videos
Notes: The scariest thing about YouTube’s license is that YouTube reserves the right to license your videos posted with just about any party they desire. However, that license is revoked by simply deleting your videos from the site. However, the license does not end upon removal of the videos, but rather, “within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service.” What that exactly entails, is unclear.
Conclusions: YouTube certainly claims a wide collection of rights. But they specifically mention the use of use in “any media formats and through any media channels” as well as use for the promotion of the site. Users should take heart at the easy revocation of the license, but should also be warned that the license granted by posting a comment is both perpetual and irrevocable.

TOS Link: Revver Member Agreemente
Rights Granted: “…use, reproduce, modify and adapt (solely to permit Revver to conform and adapt Your Video Content to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments or materials You submit to Revver, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed.”
Sub-Licensable: Yes
Revocable: Yes/No
How to Revoke: Disabling Account or Providing Notification
Notes: Revver’s policies are confusing and difficult to understand for event he most astute in this area. They actually have three licenses, a license to Revver, quoted above, a online commercial license to others (limited to the purposes of the Revver Syndication Network) and an irrevocable non-commercial distribution license that uses Creative Commons’ BY-NC-ND License.
Conclusions: If you discount the mandatory and irrevocable CC license, the Revver License is not that much different from other sites. What is unique is that everything in the Revver license is built around commercial use. This is because Revver puts ads in all videos and shares profits with users. Much of the difference can be found in that.

TOS Link: Google Terms of Service
Rights Granted: “…reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.”
Sub-Licensable: Yes
Revocable: No
How to Revoke: N/A
Notes: The rights Google takes in the work are relatively narrow and limited only to Google’s “enabling Google to display, distribute and promote the Services”. Google also hints that the license can be revoked in some cases, but I was unable to find a TOS specific to Google Video to determine how.
Conclusions: Though Google has a bad rap about removing infringing works, their license here is fairly reasonable. Though the license itself is irrevocable, the scope is so narrow that removal of the work would be tantamount to a revocation in most regards. Still, it is worrisome that there is no clear way to terminate the agreement.

TOS Link: Blip.TV TOS
Rights Granted: “…to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute and publish that content for the purposes of displaying that content on Blip.tv and on other Web sites, devices and/or platforms.”
Sub-Licensable: Yes
Revocable: Yes
How to Revoke: Remove Video & Request Permanent Deletion
Notes: Most video sites, in their TOS, let you know that a copy of your video, albeit not one for display, may still be available after you delete your copies of the content. Blip.TV offers you a means to delete even those hidden copies by contacting customer service.
Conclusions: All in all, Blip has a fairly narrow license and even promises not to sell advertising on your content without permission. It also provides control over what formats your work is distributed in “To the extent reasonable and possible.” Their dedication to being an open platform is taken very seriously and reflects well in the relative fairness of their terms.

TOS Link: Terms and Conditions
Rights Granted: “…to use, copy, prepare derivative works of (including without limitation, to rename, edit, shorten, split the videos into different segments, and use the entire video or segments as part of compilations), display, and perform the User Submissions in connection with the Website and Metacafe’s (and its successor’s) business, including without limitation to grant access to the Website to third parties to view the User Submission (and derivative works thereof).”
Sub-Licensable: No (transferable)
Revocable: Yes
How to Revoke: Notification
Notes: It is important to note that Metacafe’s Producer and Producer Rewards programs have different licensing requirements. Second, though the license does not specifically say that it is revocable, it does offer a means to terminate the license. Also, the license does not say that the rights granted are sub-licenseable, but that they are only transferable. This means that they can be given to another company, for example, in the event of a buyout, but can not be sub-licensed, such as you licensing your work to another site while retaining their rights.
Conclusions: All totaled, Metacafe has a very reasonable license and is one of the few on the list that does not explicitly require you to grant them the right to sub-license their rights in the work. It also limits its rights to uses “in connection with the Website” and only grants third parties the right to view and use the content for “non-commercial and personal use”.

TOS Link: Terms of Service
Rights Granted: “…reproduce and display Your Content, in whole or in part, and to display, perform, distribute and transmit the same via the features that enable the Website to be accessed both on the Internet and through any other electronic communication media or technology, now known or later developed, and to adjust the format of Your Content as necessary for the purposes of reproduction, display and transmission.”
Sub-Licensable: No
Revocable: ???
How to Revoke: ???
Notes: Dailymotion is the only site that makes no mention of their license to your content being either sub-licenseable or transferable. However, it also makes no mention of how and if the license can be revoked, even though it does so with the the license it grants you regarding its copyrighted work.
Conclusions: Dailymotion’s license, to me, feels incomplete and that worries me. Though the license to use your content is very narrow and would, most likely, be effectively revoked on the deletion of the video, I would feel better if the license would explicitly talk about whether the license is transferable, sub-liceseable and revocable.

TOS Link: Terms of Use
Rights Granted: “…publicly display, publicly perform, distribute, and reproduce the Materials in any manner and in any medium, including, without limitation, through physical copies such as still photos, videos, and CDs, by television by any means, on or via the Internet, including, without limitation, the World Wide Web, and any other two-way transmission control protocol / internet protocol (TCP/IP) based distribution network or similar networks or technologies now known or hereafter to become known….”
Sub-Licensable: Yes
Revocable: No
How to Revoke: N/A
Notes: Break limits users to personal and non-commercial use of the content on the site. It also designates the the license is perpetual, meaning that there is no way to exit it. All of the rights above are assigned to Break and can not be revoked without special agreement.
Conclusions: Break’s license is worrisome to me. Not only does it grab an extreme amount of rights, including specifying some uses that go well above and beyond what one would expect from posing on a video sharing site, but it also states that the rights are perpetual and offers no means to terminate the agreement. It, to me, seems to be an extreme rights grab that is beyond what is actually necessary to run the site.

Conclusions

By in large, most of the video sharing sites have reasonable terms of service that allow you to quickly and easily exit the agreement if you are unhappy with the way the site is treating you and/or your content.

I am hesitant to offer any conclusions on which site is the best simply because, though some sites grab more rights than others, it might be a worthwhile exchange. Many, for example, will be fine with Revver since the site shares revenue and YouTube might be acceptable to others due to its large community.

Personally, for those seeking to make money, I feel that Revver is the strongest. Those seeking to keep as many of their rights as possible, Blip.TV is very strong as is Metacafe. Also, Dailymotion, with a little more clarity, could also be a great site.

In the end, you have to decide for yourself how much risk you are willing to take and what rights you are willing to surrender in your work. It is important to read the terms very carefully and draw your own conclusions.

As for me, I’m moving my videos over to Blip.TV in the coming weeks. Not only do I like their terms, but also their player and general appearance suit me better.

However, that is just my personal decision, I know many will disagree with it.