Terms of Service (TOS) controversies are becoming increasingly common. Back in April, both Ancestry.com and Google Drive were at the center of TOS storms, both of which either turned out to be insignificant and/or quickly resolved.
In fact, that’s the route most of these cases go, mountains are made out of molehills and confusions are cleared up quickly.
However, TOSes remain one of the biggest threats and challenges to content creators on the legal front. While they are necessary, companies have to get certain rights in a work that user wants to publish, they can often be updated without any acknowledgement sent to the user and can easily cause the submitter to give up more rights in their work than they intended.
Traditionally, that threat has been largely theoretical and the scares inconsequential, but today that changes.
Craigslist, in an update to their TOS dated to February, changed their terms of service to grant them exclusive rights to enforce the work. They more recently added strong new warnings to their post page that read as follows:
“Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.”
However, it’s still likely that many Craigslist users are unaware of the change and its implications and it’s a situation that should call into question both Craigslist and the way TOSes are used in general.
To understand this a bit more clearly, we need to break down what Craigslist did and why it is important.
What Did Craigslist Do?
In February of this year, Craigslist changed their TOS, without any significant public attention, to remove the “non-exclusive” component of the license users grant to them. Craigslist also added a rather vague section that reads as follows:
You also expressly grant and assign to CL all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).
More recently, the company added the above line to its posting page, bringing the matter to the attention of the media.
What Does the New TOS Mean?
What this means is, truth be told, a bit up for debate for reasons we’ll discuss in a moment.
However, what is clear here is that Craigslist is not asking for you to assign your copyright in them, but rather give them an exclusive license to use your copyright, making them the only person who could use it. It is a very subtle difference that, while it has some meaning legally, doesn’t make much of a difference practically.
The reason is this, anything you post to Craigslist they have the sole right to use. This means that you, nor anyone else, can repost that content without their permission and Craigslist, and Craigslist alone, has the right to enforce it. If you wanted, for example, to repost the content from your ad on other classified ad sites, on your blog or anywhere else, Craigslist would have the ability to do that.
Most sites, by contrast, ask for a non-exclusive license to the content, one that gives them the right to display it and do the things necessary to make their service function, but leave you free to use it as you see fit.
With the new terms, though Craigslist is unlikely to use in such a way, the company now has the power to stop you from reposting your content.
Why Did Craigslist Do This?
The reason they did this is pretty simple. Craigslist has been in a series of high-profile legal disputes with sites like Craiggers and Padmapper that take Craiglist data and reuse it in a variety of ways.
These sites, according to the Ars Technica article, work by scraping Craigslist data out of the Google cache, rather than from Craigslist directly.
This protects those sites from many of the legal issues that stem from scraping and Craigslist couldn’t use copyright to target them because it didn’t own the rights to the works that were involved.
Craigslist, most likely, intends to use these rights in their legal battles with these companies.
However, there are serious questions as to whether or not this will even help Craigslist as most of the elements these sites grab are factual in nature, meaning that they can’t be copyrighted.
In short, even with exclusive rights to everything posted on Craiglist, the site still may not have much of a copyright case against their foes.
Can Craigslist Do This?
Most likely: No.
The reason is that, under U.S. copyright law, the transfer of a copyright or exclusive rights to a work require a written contract (PDF). This is not true for non-exclusive agreements.
However, Craigslist is likely to make the argument that the user clicking “Continue” creates a valid signature as per the Electronic Signatures in Global and National Commerce Act (PDF).
The act defines an “electronic signature” as follows:
“an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”
In short, Craigslist is likely to argue that your tick of the “Continue” box is just as valid a signature as one on paper. But whether it meets the standards set in the act would have to be decided in court.
Still, most legal experts seem to agree that Craigslist is stretching here and that their efforts to compel an exclusive license won’t hold up if challenged. However, until the courts rule, I would be very wary of posting anything to Craigslist unless I intended to grant them an exclusive license.
Even if Craigslist backs away from this stance of it the courts quickly shoot down this kind of rights grab, this should serve as a warning for others when it comes to TOSes. While they are necessary and the Web couldn’t function without them, we need to be wary and careful of them.
I don’t think people should read the entirety of the TOS, but at least skim to find the key points and use the search function to find the topics important to them, such as the license they grant.
But what is so scary about this case is that Craigslist TOS, like most, can be updated at any time without any major announcement. This is a big part of how a change from back in February went unnoticed for so long.
“CL may post changes to the TOU at any time, and any such changes will be applicable to all subsequent access to or use of craigslist.”
In short, diligence alone isn’t enough. We haven’t had many problems to date because most companies have worked to treat their customers fairly but Craigslist, perhaps a bit too blinded by their recent conflicts, have tipped the balance.
What happens next may play a much bigger role in the future of the Web than even the recent protests. Because if other companies feel it’s ok, legally and ethically, to follow Craigslist’s path, then the Web could easily be changed in ways that we can not easily imagine.