Bloggers, TOS and IP

The other day a friend of mine said that she was quitting Blogger because she was livid over their terms of service agreement.  She is a writer and has been burned by ebook piracy in the past and found pieces she had written in their entirety on other websites around the internet.  The crux of her outrage came down to this particular section within the broader Google terms of service agreement.

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

I looked at that and didn’t see what exactly she was objecting to, but in speaking with her further, her objection seemed to hover around an interpretation of reproducing and “royalty-free.”  So, as a curious person I decided to look into the Terms of Service for Blogger itself, as well as the WordPress TOS, TypePad TOS, and the LiveJournal TOS, just to see what was going on out there. Being an absolute dork I actually sat down and parsed through the language from each of these five TOS agreements and made this handy chart.

It came as almost no surprise to me that much of the legal language concerning intellectual property rights and the ability of these blog services to reproduce your works royalty-free is pretty much across the board, though with some notable and glaring exceptions.

Disclaimer: I am not a lawyer!  I’m just a guy who reads a lot, and can analyze the hell out of something.  This is my interpretation of what these things mean, and as a nice guy I may have a rosy colored look about things.  If you are a lawyer, or you are one of the legal counsels for these companies I wholly recommend that you correct anything you see wrong in here in the comments below.

The Google TOS agreement, which is kind of the parent of the Blogger TOS agreement includes much more comprehensive language about the perpetuity of the content.  This is no real shock, since Google as a company is in the business of caching pretty much everything in existence always.  However, they go to great pains in the Blogger TOS to explicitly state that they do not claim control over anything (Section 6, Paragraph 2, see the bold), and that the only reason why they include the agreement to the above rights is “for the purpose of displaying and distributing Google services” i.e. your blog.  Also, Blogger specifically mentions that you can also CC License your work and they’re totally cool with that.  Though it is forever, and you can’t back out of it, ever.  The only other unique thing about the Google TOS is that it includes “translate” which is a separate service that Google offers, and can be applied to your page should someone in a foreign country want to try to read your blog in their language.

Analysis of the WordPress TOS was a little more disconcerting, as it makes no mention that you as the writer retain the copyright to your work.  It talks a whole lot about not posting anything infringing, including if your employer retains the copyright on your work.  Seriously, does it say explicitly anywhere in there that you retain your copyright?  No, but I’m assuming that they’re assuming you don’t have to say that.  Though, given all the language about infringement, it seems an odd thing to have not explicitly enumerated in the TOS.  Don’t worry WordPress, I believe you are good at heart.

TypePad on the other hand does explicitly state that you retain the copyright to your work uploaded through their service.  However, they include some language that may be more troubling to certain folks.  For instance, with TypePad you give them the right to “use” your material as well as the right to “make derivative works.”  This is more worrysome because by allowing them to make derivative works it implies that TypePad is allowed to remix your content for their own purposes.  Now, I’m going to assume that by “derivative works” it doesn’t mean that they’re going go running out and publish your blog as a book or that they’re going to re-write your content and put words in your mouth.  What they’re probably going for, assuming the best of intentions, is that they might use your blog in a feed related to items that have recently come out from the universe of blogs within TypePad, i.e. highlighted awesomeness.  They’re in the blogging business, and their business is to get more bloggers, not to play mashup with your work and try to turn around and sell it.

Perhaps the most troubling, funny and sad of the blogging services listed here was LiveJournal.  I have a soft spot in my heart for LJ as I have been on there for nearly nine years now.  But oh, it’s so sad to look at their TOS.  The good news is that it says you explicitly retain your copyrights.  The only explicit thing that they reserve the right to do is serve up your content to various platforms.  The bad news is that the rest of the TOS is all about how they regulate adult content, what you get with paid services, and the myriad list of things that will get you banned.  It’s like the entire agreement was cobbled together from all of the pain and suffering that they’ve gone through as a company who probably started with no legal team and had to carve out legal language based on experience.  And they probably did.  Compared to the rest of these TOS agreements, it’s like looking at your little brother in a room full of wealthy corporate attorneys.

Comparisons aside, what are we to make of this language in these TOS agreements and what should authors truly be concerned about?  Why do these blogging companies require all these rights and permissions?  Let’s just look at the details and think about it for a minute.

World Wide

Well, duh, it’s the internet.  Of course they’re going to want permission to present it to the world as a whole, because that’s the plan with anything going onto the internet.

Royalty Free

This is the big sticking point for my friend.  I put it this way.  If you’re not monetizing your blog, then nobody else is going to monetize it for you.  You can get an adwords account and maybe get some cash on the side from click-throughs. But putting something on the internet, that is not behind a paywall, is free, and you had just better live with it.  They’re not going to give you money for your awesome blog, just because you get a million hits.  If you are getting a million hits, then sell your blog yourself.  Go publish in print form like Cake Wrecks or Cheezburger or Stuff White People Like or Julie and Julia, etc. etc. etc.  They’re just providing you the platform, do with it and profit from it as you will.

Non-Exclusive

This is probably the best part of every one of these agreements.  It’s non-exclusive.  None of these sites cares if you repost this across every other blog platform imagineable, if you sell your content to the New York Times, or The Atlantic, if you go and get published by some big fancy publisher.  It’s all good, cause they don’t want to be your exclusive publisher.  That’s your call, and you can cross publish as much as you like.

Reproduce, Publish, Distribute

These all mean pretty much the same thing.  They’re making an infinite number of digital copies available to the world, ad infinitum.  It’s the internet, that’s what it does.

Adapt and Modify

One of the glorious things about the internet is that through the beauty of XML and CSS things can look different on different pages.  So, if someone imports your RSS feed into their LJ Friends page it’s going to show up in their cutesy homespun format.  If they import it to Google Reader it’s going to strip out any of your page background or color choices, etc.  If someone is looking at your content on a mobile site, it may give an abbreviated paragraph or only the title line from your post.  It’s fairly common for blog services to change the presentation of your content, but not actually change the content itself.

Publicly Perform, Publicly Display

It’s the internet.  It’s on public display.  If you didn’t give them the right to publicly display your blog, it would be like typing your blog in Google Docs and just saving it for yourself so no one else could see.  If you post a video, it’s a public performance.  If someone uses a speech translation device to read your content, that could be a public performance.  You’re trying to get out there, not hide.

Ultimately, there’s not a lot of difference between the terms of service between these companies (except Livejournal, but never mind that).  What you’re basically agreeing to do is to let any of these web companies make your content freely available to the public.  They don’t care what you write, so long as it’s not a copyright violation.  They don’t want to be the exclusive agent to you.  They just want to get it out there, in as many ways as possible, because having great content means more hits for them, and possibly more new accounts.  Hopefully paid accounts.  Blogging can be anything from a personal rant board to a highly monetized kickass website that earns you bank.  The blogs just give you the means, the ends are what you make of it.

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2 comments on “Bloggers, TOS and IP

  1. Hey Eric!

    This is a really interesting topic, and I’m going to spare everyone the first response I wrote to it (because it was nearly as long as your post!) and just point out one thing that I noticed. My first thought was that I’m uncomfortable with the “irrevocable” part of the license but on further reflection I realized that was a knee-jerk reaction to historical problems artists have had with giving up copyright (exhibit A, Jack Kirby). But this is just a non-exclusive license, it really doesn’t have the same effect of keeping a creator from benefiting from their own work.

    More importantly, there’s other language in the part of Google’s TOS you quoted that could put important limits on their license. They’ve volunteered that “This license is for the sole purpose of enabling Google to display, distribute and promote the Services.” If I were a lawyer whose client didn’t like something Google had done with her content, I would be looking long and hard at whether that use promoted their Services. If not, I’d be in court arguing unlicensed use. When in doubt, unclear contract terms are interpreted against the writer of the contract (here, Google), and every part of a contract is assumed to have a contractual function so they can’t just ignore that part of the TOS. On balance, I think most things that a company would do with an irrevocable license that would really worry me are going to be cut off by that language.

    But, keep in mind, I’m also not a lawyer (yet!) and like you I’m a nice person who believes people are mostly good at heart.

  2. [...] via RSS, which is often referred to as “really simple syndication.”  As I mentioned in my previous post about TOS agreements, the rationale behind this language is not so Google can steal your images.  It’s so Google [...]

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