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.
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.
- TOSBack Terms-of-Use Tracker
- Terms Of (Ab)Use – Electronic Frontier Foundation
- The Clicks That Bind: Ways Users “Agree” to Online Terms of Service – Electronic Frontier Foundation
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
I was delighted with this analysis. I am also baffled by the intellectual, precise and colorful way of describing various parts of the ToS. Great job ! Thank you very much !
Pingback: Getty Images Says Google Plus Terms of Service Is ‘OK’
Pingback: Getty Images Says Google Plus Terms of Service is "OK" | TechDiem.com
Jim, although your comments make a lot of sense in evaluating the risk/reward equation of posting on Google+, or any social service (and thank you for those comments), I would agree with Joe. Just like a CC license, it is good forever unless the terms of the license are violated, i.e., you can’t rescind it. I understand Google’s interest in protecting themselves, but also remember they were in complete support of the Orphan Works Act of 2008. (I posted more detail on that to the Bag and Baggage thread, but I know you know about that “act”.)
Thanks for all your good work.
Pingback: Getty Images Says Google Plus Terms of Service is "OK" | Scripting4U Blog
Pingback: Are you with Google+ | 1stAngel Arts Magazine
Don thanks for the comment. I understand your concern and it is a valid one. I cannot emphasize enough that the license granted in the ToS is for syndication only. The license is very narrow in focus. I think of it this way… that once the cat is out of the bag with an update its virtually impossible to pull back. Sharing online can be exponential in growth. Google can control how they syndicate content, but due to network effects shared entries are very likely unmanageable. That being said I give Google credit for good behavior that influences my choice to share content there as unlike Facebook they provide an avenue for you to export your contact lists and posts. It’s a step in the right direction in regard to data portability.
As for the Orphan Works Act of 2008 I am all too aware of it. The effort there was far broader in scope than licensing syndication on a social media web site and covered expansive use of photographs in a variety of traditional publishing mechanisms.
Facebook really botched their ToS early on and as part of that I learned that you can be extremely conservative about publishing photographs (low resolution and watermarked) within their network via 3rd party links. So there are work arounds and still ways to share your photography. I think this later approach is a great way to work with in these social media sites if you do not want to upload photographs to them directly.
Pingback: PI (weekly) « PI en Second Life
Pingback: Google+ doesn’t own me | Ben Hopper's Blog
Pingback: Google+: The Survival Guide for a Photographer's Paradise | Colby Brown Photography
Finally someone who knows what they are talking about! I’m surprised some people get out of bed they are so afraid of stuff…
Pingback: Google+ & Photographers: References // Brian Hirschy Photography
As I read the bit of 11.1 which is the subject of your second “Reluctant OK”, it’s not that the restrictive scope of grant can be revoked by other services, but that the entire license, under which Google has any rights at all, can be revoked for other services, so this license is the *most* expansive that is granted.
Pingback: Evaluating Terms of Service Documents: Resources » JMG-Galleries – Jim M. Goldstein Photography
Why does “non-exclusive” raise a red flag for you? This means that Google wants a license, but doesn’t restrict you from licensing to other parties. I.e. “exclusive” should raise a red flag.
Pingback: links for 2011-07-19 « Wild Webmink
Pingback: Getty Images Says Google Plus Terms of Service is “OK” | Modern Techie
I just found this article through – HA! – Google. I see your point about the words perpetual and irrevocable.
I have shared photos of my artwork freely and liberally on social media sites. By doing so, I have become exposed to a much larger audience for my work. I am thrilled when my work is shared by my contacts with their networks, because that broadens my audience even more.
When it comes to the TOS for these sites, I am most concerned with their access to use my work to make products for profit. If I develop a character that I post online, do they have rights to merchandise it? If I post a photo of a painting, do they have rights to create a Google T-shirt with it and sell it?
I’d appreciate hearing your thoughts on that. Also, have you written similar articles about Facebook and LinkedIn TOS?
Thx for you efforts in explaining this!
Pingback: Getty Images Says Google Plus Terms of Service Is ‘OK’ - World Bad News : World Bad News
You are correct this was a typo on my part. Fixed.
Pingback: Topic 1. Google+: Are you using it? What do you think? « Writers discuss…
Pingback: CrunchFocus | Google+: The Survival Guide for a Photographer’s Paradise v1.2
Pingback: Will Google+ Become Another Flickr-stlye Feeding Ground For Photo Theft? | Journal of Technology and Economic Development | Future Technology | Green Technology | Military Technology | Business | Trading | Finance | Computer | Robots | Entertainment | Gam
Pingback: Will Google+ Become Another Flickr-stlye Feeding Ground For Photo Theft? | Benjamin Hall
Pingback: Will Google+ Become Another Flickr-stlye Feeding Ground For Photo Theft?
Pingback: Will Google+ Become Another Flickr-style Feeding Ground For Photo Theft? | Benjamin Hall
This puts a lot of faith in Google’s good intentions because they’re Google. Flickr, SmugMug, and 500px are much clearer and more precise. Why must Google leave themselves room to screw photographers should they decide to (they or their “partners.”)
Pingback: In Fairness to Google: A Reevaluation of Google+'s and Facebook's TOS | facecrooks.com
This makes sense, but I think it should be clarified further. For instance, Facebook says the following in section 2.1:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
This is much clearer and well-defined in scope.
Pingback: Pinterest – Seeing Beyond Your Own Nose » JMG-Galleries – Jim M. Goldstein Photography
Pingback: E L S U A ~ A KM Blog Thinking Outside The Inbox by Luis Suarez » Social Networking and Going Back to Bascis
How about the new terms of service that are valid for Google+ since March 2012?
Great write up, Jim. well done And keep it up