Using a social media web site (Ex. Twitter, Facebook and now Google+) is a common place activity for many, but every time a new social media site comes online the same discussions surfaces and the same comments are made about rights grabs, privacy concerns and the need to lock your personal information & photos offline to preserve your ability to protect your work/business. This later concern is one photographers repeat every time a new site comes online and its often backed by erroneous information or a simple lack of understanding of the Terms of Service (ToS) of the new web site.
The Basics
Before I go further it’s important to note that a Terms of Service document is a legal document. To get a definitive take on what a specific Terms of Service document says consult a lawyer. I am not a lawyer and what I’m about to share is based on my personal experience as a web entrepreneur, full-time professional photographer and former corporate web manager. If you’re reading this and you’re a practicing lawyer I welcome your feedback, input and contribution to the information below.
Jockeying for Legal Protection – How Each Party Protects Themselves
Me – As a professional photographer I don’t just think in terms of producing photographs; I think in terms of intellectual property. As such all of my work is filed officially for copyright with the U.S. Library of Congress. (For more on my copyright work-flow see Copyrights: Protecting My Photography or 10 Must Read Copyright Articles for Photographers.) This is important because it helps me protect my creative work to the full letter of the law in the event my work is misappropriated. And by that I mean companies of all sizes will almost always take note of a copyright infringement claim when notified of a formal copyright filing with the U.S. Library of Congress as it can mean real impact to their bottom-line.
Copyright protection helps me gain footing to protect my business and secure future income even when up against a person or company infringing my copyright that might have greater resources or might otherwise chose to ignore a complaint it sees as a non-priority.
Them – Not surprising companies behind social media web sites also think in terms of intellectual property and take necessary steps to protect themselves.
- First and foremost they want to establish that they own the code behind the functionality that makes their site work (ex. site users don’t own how Google+, Twitter or Facebook works or any portion of code behind the sites). This is almost always under a Proprietary Rights and/or general License section of a ToS.
- Secondly they want to establish they hold the right to share submitted information (syndicate information) in such a way that the site functions as expected in regard to sharing content and can be ported to sister web properties or web partners (ex. Tweets can be ported to a blog via a Twitter widget, Tweetdeck or Hootsuite can receive/display your tweets from Twitter, etc.). Social media is about sharing, so syndication is a central function to secure rights for. In general such terms can be found under a Content License section of a ToS.
- Thirdly they want to make sure they are not opening themselves up to lawsuits (ex. liability, privacy or copyright infringement and claims regarding security breaches). To safeguard against such claims “Liability”, “Security” and “Privacy” disclaimers are always present. Copyright & Trademarks are often covered on 3 fronts: End User content (content you own that is shared), 3rd Party Content (content you share owned by others) and Developers (programmers creating new software leveraging an API to port shared content to plugins, apps, etc.) Because of the complexity surrounding copyrighted and trademarked information terms are usually divided between several sections in a ToS document.
If you were to start a social media company these would be your top 3 concerns. Creating a social media web site takes a lot of time, planning and resources. Losing that investment would be catastrophic hence the need for legalese covering the aforementioned concerns.
My Top 4 Factors Dictating Participation on Social Media Web Sites (ex. Google+)
Note: Google+ is used as an example, but could be replaced by any company/site name.
- Is a claim made that the copyright of my work is transferred to Google+ (or company X) upon posting/submission?
- Is a claim made that my copyrighted work will be distributed to sites under a set umbrella of sites and services (ex. Google+, Gmail, Buzz, Google Search, Google Image Search, Google Maps, Google Places, etc.), or far beyond such as a blanket claim to sub-license my shared work to known and unknown companies/services (ex. 3rd party advertisers or image licensing services)?
- Do terms used in relation to any claimed license include “irrevocable”, “perpetual license”, “fully paid”, “royalty-free” or the classic phrase “by all means and in any media now known or hereafter developed”?
Horrible example often absorbed in boiler-plate ToS:
You agree to grant to “Company X” a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by e-mail to “Company X” by all means and in any media now known or hereafter developed. You also grant to “Company X” the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against “Company X” for any alleged or actual infringement or misappropriation of any proprietary right in your communications to “Company X”.
- Can the Terms of Service be terminated by myself and not just by Google+?
How Google+ Holds Up to my 4 Factors of Participation
As I read the Google Terms of Service document my 4 Factors of Participation break out as follows:
- Copyright – I retain my copyright and all other rights held to submitted content. (Win!)
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. (for remainder see #3 below)
- Content distribution & claimed rights
11.2 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.
This is a broad statement, but rights aren’t given to 3rd parties outside of the scope of syndicating content. As stated earlier sharing is a central pillar to social media so I’m OK with this. (OK)
In addition Section 11.3 clarifies an often abused statement “by all means and in any media now known or hereafter developed”. Content will be changed or adapted to meet technical requirements of future networks, to fit future devices, services or media. It’s open ended but makes logical sense to me versus being an extremely vague rights claim. (OK)
11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.
- Use of “Red Flag” terms
11.1 (cont.) By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and 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.
- Yikes Google starts using red flag terms “perpetual”, irrevocable”, and “royalty-free” and “non-exclusive”. To their credit they use “worldwide” and not “universe” which I’ve begun seeing. At first glance I’m turned off by these terms, but I fall back to my entrepreneurial experience from the dot com days and recognize these are terms necessary to use to reproduce content online. Think of this blog post. The title and abstract of its contents can be displayed in Google+, shown on a Google Custom page, in a Google RSS Reader, be translated by Google Translate, repurposed via Google owned Feedburner, appear in Google Search, etc. Each of these services needs to modify the display and length of this posts content. On top of that there is no limit in time-frame to when someone might find a search result for example. (Reluctant OK)
- Google clarifies why the aforementioned red flag terms are employed, but also states these terms may be revoked per the terms of other Google services. This part per my earlier explanation makes sense, but ends in a way that makes me a little nervous as its open ended. (Reluctant OK)
- Termination of Terms of Service
Google outlines in Section 13.1 and 13.2 that you can terminate the ToS and provides a mechanism to do so. (Win)
Keeping an Eye on the Big Picture
Social Media sites can be used in a variety of ways to support personal and business goals. While they’re fun to use I strongly believe they should be used with a goal in mind. Goals for personal use may vary drastically compared to goals for business use. On top of that goals for business use vary as well based on the type of business you run, how you run your business and who your target audience is. My top 4 concerns in evaluating the ToS for a social media site may not be the same as your own, but I personally think they’re a good start in making an early evaluation of a particular service and whether they’re worthy of using.
In my example I’m OK in using Google+. Having read the Google+ ToS I have a better feel of how my content is being used and have identified short comings that might force me to modify my sharing behavior there. Ultimately I find no reason yet to curb my sharing behavior, but as with all new services I’m starting off conservatively to see how Google+ evolves during the closed beta.
Social media is a great tool. As always I recommend approaching it with an open mind and in an educated fashion.
Related Articles:
Update: Google+ ToS from an Attorney
Google user licenses: clarification would be nice, but they’re not panic-worthy
Getty Images Blesses the Google+ ToS for its Flickr Collection Contributors
Getty Images has responded to inquiries that posting images on Google+ does not violate the terms of Flickr Getty Contributor contracts.
If you’re a Getty Flickr contributor you can view this private link with specific details
Google+ Not Part of Google Display Network (Ad Network)
Google representative states “Google+ is not part of the Google Display Network” in this wired article Google+ vs. Facebook on Privacy: + Ahead On Points — For Now
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