The Saga of MegaUpload

This is what you see when a website is seized by the federal government.

Several of my friends have posted today that they think that the Anonymous DDOS attack against the websites for the FBI, the DOJ, MPAA, RIAA and others was wrong.  I disagree with them and there is a lengthy reason why.  Let me walk you through the Saga of MegaUpload.

For those who don’t know, MegaUpload is a file sharing site.  People use this site because they tend to sometimes have files that exceed the capacity limits of regular email providers, and they need to send those files to other people. There are whole broad range of websites who perform this service including YouSendIt and DropBox.  But MegaUpload was extremely popular because they had great connection speeds and a lot of individuals and businesses used it for its intended purposes.  Well, with any file sharing service comes a crop of people who use that service to share copies of copyright protected material.  Some users had taken advantage of the unlimited file sizes and uploaded entire sets of television shows and DVD rips, CDs and more.  When you upload a file you get a link to somewhere on the MegaUpload server, that you can share with whomever, and some people shared those links with the entire world.

Now, as I said before, every website that allows users to upload content runs into this problem one way or another.  So, Congress when they were exploring legal options for the future of protecting copyright crafted the Digital Millennium Copyright Act.  In the DMCA there is a provision for businesses who run upload sites to be exempted from copyright lawsuits and to continue doing business so long as they investigate and take down infringing content when prompted by a copyright holder.  This is called the “Safe Harbor” provision.  Every site that hosts user uploads has to comply with this, for fear of losing their entire business.  YouTube provides one of the main examples of how this works.  Say someone saves an mp4 of Saturday Night Live, they clip a skit out from the show and upload that as a YouTube video.  NBC Universal owns the right to reproduce SNL videos and they find that clip on YouTube.  They tell YouTube to take down the video because it’s infringing on their copyright.  YouTube checks the video and takes it down if they believe that the copyright holder is in the right.  Though more often than not the link will get taken down first, the link uploader will write back to YouTube and tell them that this was wrong and that they do own the copyright for real and then the link gets restored.

In early December MegaUpload released a promotional video on YouTube made by a number of high profile recording artists like Kanye West, Snoop Dogg, Alicia Keys, and Will.i.am to promote the use of MegaUpload.  Universal Music Group promptly filed a DMCA takedown request with YouTube to have the video suppressed, because UMG, the parent company for many of these artists, believes that MegaUpload is a threat to their business model, and the Recording Industry Association of America has deemed MegaUpload a “rogue site.”  So, even though all of the artists have contracts on file with MegaUpload to perform and distribute the song, UMG filed this takedown notice claiming that there were some people on there who didn’t in fact actually agree to it.  It went back and forth for a while at YouTube and eventually it just got taken down entirely.  On December 13 MegaUpload announced that it was going to directly sue UMG for filing false DMCA takedown requests.  The thing that was even more interesting is that UMG filed a DMCA take down notice for a local news program who played the video in the background of a report about the UMG MegaUpload controversy, and YouTube took that down too.

Now all of this was happening while in the background there was a slowly simmering online opposition to the impending SOPA and PIPA legislation that I wrote about previously.  As many people pointed out SOPA would eradicate the safe harbor provisions inherent in the DMCA, making sites like YouTube, DropBox, and MegaUpload vulnerable to DNS seizure by the federal government.  As the internet began to rally against SOPA the entire conversation about MegaUpload began falling by the wayside.

On January 18th, a host of prominent and powerful websites participated in an internet blackout in response to SOPA.  The effect was tremendous, and number of legislators who had originally been backing SOPA and PIPA in Congress pulled their support, many who were undecided declared their opposition, and ultimately Patrick Leahy and Lamar Smith tabled both bills.  No one is under any delusion that there won’t be new versions of these bills coming out sometime in the near future, but the legislation as it was originally drafted is not coming back.

The very next day Federal agents shut down MegaUpload, raided the homes of their founder and staff and seized data centers in three different countries. It’s kind of hard to say that it wasn’t an attack of vengeance, or a strike back against the derailment of SOPA.  In fact former Senator Chris Dodd, who is now the public face of the Motion Picture Association of America, basically said that Obama could just forget about Hollywood financing if he doesn’t get tough on piracy.  Sure, correlation is not causation, but it sometimes is just a lot of correlation.  To threaten the campaign funding of an incumbent President to get your way, well, that sure looks a lot like blackmail for favors.

Anonymous flag via WikiMedia Commons

The hacker community swiftly responded with a coordinated DDOS attack against the public websites for the Department of Justice, the FBI, Universal Music Group, the RIAA, and MPAA.  Where people have been losing their minds is when irresponsible journalists like those at the Washington Post use headlines that say that the Department of Justice was “hacked.”  No, the DOJ was not “hacked.”  Nothing was broken into.  No files were stolen or compromised.  These sites were hit with a distributed denial of service attack against their public websites.  DDOS is basically when a website is hit all at once with a huge number of requests to send the content to a browser.  The volume of requests can’t be handled by the web servers and it slows to a crawl.  This renders the website inaccessible during the timeframe of the attack.  In this case the DDOS lasted 70 minutes.

As a former federal employee, I can tell you that I used my agency’s publicly facing website 0% of the time.  All of my activities for my work happened entirely on intranet systems or external vendor services that would not be effected by something of this nature.  I imagine the same is true of any company, government agency, or non-profit institution.  DDOSing a public website just means that someone from the public can’t go to that website until the DDOS is over.  Given the length of time that Anonymous ran this attack, the sites that were targeted, and the irrelevance to business operational functions, my opinion of this DDOS attack is that it served simply as a statement.  Hackers were pissed that a popular site was taken down, so they sought to “take down” those responsible.  Is it juvenile?  Sure.  Does it make a point?  Absolutely.

Putting the activities of Anonymous aside, there are a ton of reasons why the MegaUpload raid was uncalled for, and that the DOJ may have an extremely difficult time pushing this to conviction.  TechDirt did some really great analysis of how the indictment is not only problematic, but attempts to prosecute the case in a method that is inconsistent with previous cases of its type.  It’s definitely worth taking a look.

The main problem that I have with the MegaUpload take down is that thousands millions of innocent, non-infringing people are being screwed out of content that they legitimately own.  MegaUpload had over 150 million users, and nearly 50 million hits per day.  All of that can’t be infringing material.  A personal friend of mine had all of his music backed up on MegaUpload.  He didn’t make his links available to anyone but himself, and as a storage solution this was great.  The same is true of a number of companies and non-profits, like Public Knowledge.  Software developers would use MegaUpload to host code they were working on to build new apps.  And this is exactly why the DMCA has a safe harbor protection.  The fallout for taking down a website like this is so much greater than just the people who are committing acts that violate copyright.  It means that people who use this service for legitimate purposes have no recourse to regain their data.  Even if Kim Dotcom and his staff are acquitted, the servers and their data will remain as evidence in a warehouse somewhere throughout the course of the trial.

Opposition to SOPA and PIPA was based around provisions in those bills that would make practices like what is currently happening to MegaUpload the norm.  Any website that was accused of being non-compliant would be raided, shutdown and prosecuted.  There didn’t even have to be a finding of fact, or a trial, just an accusation.  As Matthew Inman from The Oatmeal said in his hilarious and brilliant animation it’s like dealing with a lion who escaped from the zoo by using a flame thrower on a basket of kittens.  Yes.  Copyright violation is bad.  But so is deleting the files of thousands of innocent people who use a service for legitimate means.  While the DMCA may not be perfect, they did get one thing absolutely right and that was that prosecution for copyright violations should target the offenders, not the service they use.

Who’s Supporting SOPA? Publishers.

Loads of people have published the list of organizations and businesses who are supporting SOPA.  But not everyone knows what these companies are or what they do.  And looking at that four page list is kind of overwhelming to say the least.  So I’ve put together a little pie chart to help you wrap your brain around where this is coming from.  Take a look.

This chart shows the raw number of supporters per industry type who are listed on the House Judiciary Committee list supporting SOPA*.  I’ve removed all the law firms because damn near every one of them bailed for being misrepresented as supporting the bill.  There were 19 of them in this list. I’ve also removed the Graphic Artists Guild who also dropped the bill.  But everyone else I’ve left in here.

It’s no surprise really that Music is the largest industry represented here.  Music was the first battleground in internet change in the early 2000’s (see Napster).  Similarly the Movies and Television categories are no surprise either.  Of course Law Enforcement advocacy groups are in favor, because increases in enforcement mean expanding budgets.  And it’s definitely a sign of the times that the second largest group in favor right now are publishing companies.  Further down the chain you start to get into some quirky political action committees and luxury brands who are probably looking to crack down on counterfeiting.

But as I’m a librarian, I’m going to focus on the publishers for now.  Here’s the list as I see it.

Association of American Publishers (AAP)
Cengage Learning
Disney Publishing Worldwide, Inc.
Elsevier
Hachette Book Group
HarperCollins Publishers Worldwide
Hyperion
Macmillan
Marvel Entertainment
McGraw-Hill Education
MPA – The Association of Magazine Media
News Corporation
Penguin Group (USA), Inc.
Random House
Scholastic, Inc.
The Perseus Books Groups
W.W. Norton & Company
Wolters Kluewer Health

A couple of things jump out at me looking at this list.

Academic Publishing

The first being the academic publishing powerhouses that are Elsevier, Gale (via Cengage), W.W. Norton and Wolters Kluewer.  Elsevier owns nearly every academic journal that is published in the world, and they charge a bloody fortune for access to those journals.  Gale/Cengage provide a number of research databases, as does Wolters Kluewer.  And Norton is a publisher of many things, but primarily academic textbooks, as is McGraw Hill.

Publishers with eBook Axes to Grind

Harper Collins was noted earlier this year for changing their eBook access privileges to library eBook vendor Overdrive, where their eBooks will self destruct after 26 checkouts.  Penguin also got into some drama with Overdrive access privileges this November, when, during a dispute with Amazon.com, they chose to pull all of their eBooks from Overdrive.  Access was restored fairly swiftly as negotiations resumed, but that spectre of loss is still kind of looming. Similarly, Hachette Book Group pulled all of its titles from all of the eBook distribution channels in 2009 and even up to August of this year was still trying to sort out what to do with library access.

Hot Properties

Marvel and Disney (though Disney owns Marvel) own a lot of tradmarked characters, and they enforce the shit out of those trademarks.  I remember going to the ICv2 Graphic Novel Conference at New York Comic Con a few years ago.  There was a panel discussion on fan fiction and they had folks from Dark Horse, Marvel and Nickelodeon.  I remember vividly that the folks from Dark Horse were all about fan fiction, and that they mine sites like Deviant Art to scout new talent.  Similarly the guy who produces Avatar: the Last Airbender was really supportive of fan fiction as a way of encouraging children to be creative and tell new stories.  The guy from Marvel, sue the shit out of those fan fiction people (paraphrasing).  The look of aghast horror on the faces of the other panel members was priceless.  But it definitely made the point, and its the point that comic book companies and the Disney corporation have been making for decades.  These properties belong to us, and you can not use them for any reason.  As for Scholastic, I’m sure you’ve heard of Harry Potter.

Now, all of the groups that I’ve listed here are pretty strictly print/ebook publishers or advocacy groups that focus on publishing rights.  There are plenty of other crossover companies like Time Warner, which I classed as a television company, but also produces books and films.  So if you want to quibble with my numbers you can find them here.  Sorry that this is kind of sucky looking, but Scribd kind of breaks the formatting a LOT.


* In my original analysis I had tagged Pearson Education as a publisher, and its identified as such in the Scribd document, but looking closer into them they are more of a web education portal developer, kind of like Blackboard. I’ve removed them from the table on this article, but the number is still in the pie chart. So the pie chart number of publishers should be reduced to 17. Which is still the second largest industry involved in this piece of legislation.

Stop SOPA

Friends. Do you like knowing that the search results you get are not scrubbed out by the American Government? Do you think that the Motion Picture Association of America should have the authority to force the government’s hand to start blocking websites around the world? Do you think it’s fair for a company to have their funding cut off by credit card companies for something that one of their users may have done, allegedly…

If not, then you need to go to http://house.gov/, type in your zip code and write to your representative RIGHT NOW and tell them that you DON’T support HR 3261, the Stop Online Piracy Act. It’s overreaching, unconstitutional, unamerican, and a threat to freedom of speech on the Internet.

The Internet As A Human Right

I got some feedback on the post I did last week that the guy who pushed beyond the 250 GB data cap threshold with Comcast basically shouldn’t be playing the human rights card.  The best responses were that it was a white whine or a “first world problem.”  I think that’s a legitimate criticism, but I hadn’t bothered to read the actual report to the U.N. about viewing access to the internet as a human right.  So I looked it up and read it.  So, is there a case within the report of the Special Rapporteur to the U.N. that data capping is a violation of human rights?  Let’s look at it.

The document outlines the following areas of concern in regards to people’s access to the internet in light of the Universal Declaration of Human Rights and other U.N. treaties.

  1. Arbitrary blocking or filtering of content on the Internet
  2. Criminalization of legitimate expression
  3. Imposition of intermediary liability
  4. Disconnecting users from Internet access, including on the basis of intellectual property rights law
  5. Cyber attacks
  6. Inadequate protection of the right to privacy and data protection
  7. Access to the Internet and the necessary infrastructure

Each of these elements is explained by a page or two, but here is the nutshell version.

  1. i.e. the great firewall of China.
  2. Silencing dissent and dissidents.
  3. Finding third parties culpable for facilitating illegal activities, or requiring their participation in extra-judicial censorship.
  4. France’s three strikes law and ACTA
  5. DDoS of any sort, especially when used to silence political opposition
  6. Facebook, as well as warrantless search of people’s online information
  7. Allowing systems to be in place as well as to make them cost-effective for general use.

Data capping is not explicitly addressed in the Special Rapporteur’s report.  But there are two elements here that one could construct a case against the practice of data capping, the first being point 4 (actually A-4 in the report).  While the report focuses on supposed violations of intellectual property law (a point driven by media corporations such as MPAA and RIAA), it merely does so as an example.  The point of this section of the report is that disconnection from the internet prohibits one from exercising his/her freedom of expression.  Whatever the reason put forth, disconnection from the internet is a violation of a person’s right to engage in contemporary society.

The second element to bear in mind is #3, imposition of intermediary liability.  Paragraph 45 engages the private sector actors and businesses to recognize their responsibility to respect human rights, and that the state should actively protect its citizens against private violations.

The framework rests on three pillars: (a) the duty of the State to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and adjudications; (b) the corporate responsibility to respect human rights, which means that business enterpreises should act with due diligence to avoid infringing the rights of others and to address adverse impacts with which they are involved; and (c) the need for greater access by victims to effective remedy, both judicial and non-judicial.

This framework for social responsibility to safeguard against human rights violations has the State check the corporation, the corporation check itself, and that there be legal recourse for the victims to redress their grievances.  This means that the ISP needs to be regulated by the government against abuses of its users, that the ISP should be respectful of its users in the establishment of its policies and the execution of its actions, and that if all else fails the victims can take the ISP to court over the violation.  Currently there is little the FCC is doing to regulate this kind of behavior from American ISPs, and if the so-called net neutrality compromises that have been bandied about are any indication, the agency is not terribly interested in regulating on behalf of the consumer.  As it stands ISPs can engage in data capping, bandwidth throttling, exorbitantly priced service tiers and absolute shutoffs with little to no repercussions.  And given that the user signs a terms of service agreement with whichever ISP s/he uses there is little in the way of legal recourse to retaliate against an ISP lockout if one does wind up violating the ToS, for whatever reason.

So, can the case be made that the 250 GB data cap is a violation of the author’s human rights?  Yes.  I believe so.  Is it as grievous a practice as the great firewall, or complete lack of access?  No.  But qualitative distinctions aside the facts remain.  Someone was cut off from the Internet.  The action was carried out by the ISP.  The government has not regulated the industry such that it could prevent or reverse such a decision.  While the user could seek legal recourse, this requires the capital to engage in the legal battle against a massive corporation (here Comcast) who can afford corporate attorneys.  Few people would be willing to step up to that kind of challenge and hope to win.  Only in a class action lawsuit would much be likely to happen, and common cause for a class action has been tougher to prove these days.

Is this all just justification for my own self to engage in massive amounts of downloads/uploads?  Maybe, but why shouldn’t everyone have that option?

Kids, Truth, and Lies

Kids lie. Any parent will tell you that.
“Did you eat the cookies?”
“nooooo…..”
“Did you break the lamp?”
“nooooo…..”
“Did you sign up for a Facebook account?”
“nooooo…..”

Yes you did. Yes, you ate the cookies, broke the lamp and lied about your age to get onto Facebook. Children want to get online, because their older siblings are getting online, their friends are doing it, their parents are doing it and they want to be a part of that.

Earlier this month a post went around the internet about a woman who established a Gmail account for her eight year old son, and two years later (now) he got a Google+ invitation. Due to age restrictions on the internet he was required to put in his age, and since his parents raised him to be a truthful person he entered his actual age of ten. This led to the child being not only blocked from Google+ but also from his Gmail account where he talks to his grandparents.  The mother blogged about it and got completely inundated with comments both for and against.

The reason why her son got banned is because Google is taking the easy way out on COPPA enforcement.  The Children’s Online Privacy Protection Act basically limits children under the age of 13 from engaging in basically any activity on the internet without their parent’s consent.  If the service doesn’t provide any options for parental consent (as Google and Facebook do not) then the child just has to wait.

Or they can lie.  And a lot of them lie.

It happens all the time.  Anyone can enter any age they want into the Facebook, and kids who want to do something they’re not supposed to do will find a way to do it.  And that means that they will lie to get online and do things they probably shouldn’t do.  But some, as this woman’s child was, are simply online because they are learning to be an active part of the information culture that we all share.

I totally respect that parents have and desire different levels of control over what their children do and do not see online.  I also think it’s a Sisyphean challenge on their behalf, but that’s not what I’m writing about today.  No.  Rather I would like to look at the values that this legislation is trying to instill and how flawed it is in implementation and enforcement. There are several factors that merit consideration.

Lack of Parental Options

The primary problem in this situation is that Google is not providing a method by which a parent could be involved in the child’s online presence.  This parent clearly values teaching the child how to be a responsible internet user, and that’s something that she should have the right to exercise on whatever site she wishes. By not providing a parental consent option Google does a disservice to responsible parents.

Ease of the Lie

The amount of verification that is required in order to get a Google or Facebook account is paper thin.  They’re basically just taking your word for it.  And for the majority of adults that’s awesome, because any of these age verification methods is just one more frustrating bullshit roadblock to have to deal with.  But if you’re talking about legal compliance, it’s the least amount of age compliance that anyone bothers with.  If you say you’re 14, we’ll just believe you.

The Value of the Lie

Children get a lot of use out of the internet, just as much as adults do.  They get to talk to their friends, share photos, play games together, listen to music, watch videos.  It’s awesome.  And if they have to lie to get to do something awesome, they will totally do it.  And there are basically no repercussions for doing so except for getting blocked if you get caught.

I Learned It By Watching You

Adults are on the internet constantly.  I’m a librarian and a blogger who’s married to a programmer, it’s like I’m mainlining the internet on a daily basis.  Make no mistake that kids want to be on these sites because their friends are, you are, everyone they know is but them.  They want to play with the big kids.  And why shouldn’t they?

Let’s have a real conversation about this.

This legislation, all the legislation that came before it, and all the legislation that will probably ever come after it is only going to work as far as kids can get around it and as far as companies are willing to put up with it.  The problem is not that eight-year-olds are signing up for Gmail, it’s that some parents want to legislate proper parenting for everyone else.  Different parents have different values.  My parents raised me to watch R rated films and when they didn’t want to see the movie my mother would buy my ticket for me and drop me off at the theater.  She wasn’t happy about it.  She’d rather I was allowed to buy my own tickets, but she did it.  If I was a child today I would ask my mom to sign me up for email and any other site on the internet.  And parents should have that right.

But you can’t petition a company for redress the same way you can petition the government.  You just get what you get.  And with the way things are set up now, you get lies from children.  And you know what lying about who you are on the internet leads to?  Gay girl in Damascus and Lez Get Real.  That’s all I’m saying.

More and more often the internet is placing a greater value on your true identity.  And we should value truth.  If a child wants to sign up for an internet service they should be encouraged to be truthful.  They should be educated about making safe choices on the internet, being honest with people, and knowing how to protect themselves, and yes there absolutely should be parental involvement.  Will kids still lie online?  Probably.  But the more we talk to them about what they could experience online the more prepared they will be to deal with those situations when they arise, and they will be stronger people online because of it.

More Google TOS Panic

The Washington Post has picked up on the Google Terms of Service panic, specifically in relation to photography.  It seems that the offending paragraph from the TOS is this one:

You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

Let’s talk about “syndicated services,” because I feel a lot of the fear of what is happening with these terms of service agreements stems from a lack of understanding of the process of web publishing.

When you create a blog, you are syndicating your content for the world.  The content you upload is in an XML format.  XML allows your content to be easily incorporated into other locations 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 can allow your content to be syndicated across the web in any form of content reader available to people.

This provision allows an individual to read your blog, or in G+ your photos, without having to actually visit your blog directly at Blogspot or through Google+.  People can simply import the RSS feed or AtomFeed into a syndicated feed reader like Google Reader, TweetDeck or whatever, and thus can get your content without directly visiting your page, OR as Google+ can export to email addresses for people who haven’t signed up for their service, in their preferred email service.

Is Google profiting on your photo?  Not in any direct monetary value kind of way.  However, you are.  You are winning with this provision because more people are seeing your image, because you allowed them to.  To take umbrage with this clause means that you want to deny other people the ability to read your content in their preferred method, thus limiting your readership base.  These web publishers want your content to be made as widely available as possible, because it will drive hits to their site.  Thus making them a more desirable company, and ultimately in business longer, giving you a longer opportunity to run your business through them.

What I would like to see is less knee jerk reaction to these terms, and more education about what they actually mean and what the service accomplishes via these terms.

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.