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How to Quickly Decide Whether or Not to Accept a Terms of Service

I read every terms of service (TOS) before signing up for a site.  Yes, I am that one person who reads them.  Companies, you wondered who that person was?  It’s me.  Hi!

I read them because I don’t want to have any regrets.  Just because a site has a terrible terms of service doesn’t mean that I won’t create an account.  It’s just that I use that site differently than I would have if the terms were different.

While it would be nice if everyone read every section of every terms of service, I also know that most people don’t have the time to do so.  So this post will teach you how to quickly scan the terms and figure out how YOU want to use their site (if at all).  Bookmark it and come back to it every time you have a new site to use.

terms_of_service

“You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license”

There is language a site needs to put in their terms of service to protect themselves. For instance, they need to ask you a royalty-free license or you could claim in the future that they owe you money because you brought traffic to their site with your content. They need the license to be worldwide because they need to make sure they’re covered regardless of where their users live.

BUT… there is a red flag word in there: sub-license.  This means the site can license your content to a third party without contacting you or asking your permission (because you gave them permission with the TOS).  They do not need to be granted this type of license in order to run their site, but they do need to do this to make money in the future because your content is their asset.

Sites that tell you they can sub-license your content: Facebook, Instagram, YouTube, and Twitter all have very broad licenses that state they can sell your content to third parties.  I have accounts on all of those sites, but I do not upload any images, videos, or words that I wouldn’t mind if they ended up on a billboard on I-95.  I am also cognizant that anything I upload could be used to promote a product or idea that I wouldn’t want to promote or endorse.  So… I tread carefully and consume more than I upload.

“You give us a perpetual and irrevocable license”

Before you sign up for a site, make sure you can leave a site.  And make sure you can take your content too.  What if you upload photos of your child, and then your child grows up and begs you to take their image off the Internet?  With certain sites, that won’t be a problem.  With other sites, once you upload any content, they are allowed to perpetually and irrevocably hold onto that content.  (And with the ability to sub-license, perhaps sell that content in the future.)

You can close your account at Twitter or YouTube, and you can delete your tweet or movie, but both sites are allowed to hold on and use your content in the future.  You cannot completely close an Ancestry.com account (wish you hadn’t uploaded your family tree?), Pinterest, or WordPress.com account.  (Along with many other sites.)  Before you sign up for a new account, make sure you know if you can leave and what happens to your account and content if you do.

“Customer information will of course be one of the transferred assets”

Your data is a site’s most valuable asset.  Some sites collect more personal information than others.  Some sites, such as Netflix, disclose non-personal information to third parties.  They may know X number of people watched Y film, but they don’t know the names of all the people in the X category.  Other sites, such as Amazon, admit that if they ever sell their company, they’re selling your personal information too.

It is somewhat impossible to utilize the online world without having your personal information collected.  I look for sites that are open about their practices vs. those who leave it vague.  I trust transparency.  At least I know what I am getting.

“Does not claim ownership of any Content that you post”

Make sure the terms of service state something along the lines of “You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.”  In other words, you want to make sure that YOU retain the copyright to YOUR work, and that by uploading the content, you are not transferring your copyright to the site.

It is unusual for a site to ask you to transfer the copyright.  Usually the site will ask you to grant them a license to use your work as they wish, though the creator still retains the copyright.

“We may revise these Terms from time to time”

Be careful with sites that tell you that they can make major changes to their terms of service and the most they will do is post them somewhere on their site.  Unless you are continuously going back and checking the site’s blog or TOS page for changes, chances are, you will not know when changes take place.  Even without seeing and signing off on those changes, by continuing to use the site, you accept the new terms.

What you want is a site that will contact you when they make major changes to their policy.  That is a site that operates with transparency.  Even better is a site that will allow users to weigh in on major changes to their prior policies.

Fine Print

Do a quick scan for the term “third parties.”  You want to know how using a site connects you and your content to third parties.  Are they sharing your information with third parties?  Selling your content to third parties?  You need to know where your information and content may travel.  Will it travel?  Who can say.  But once you give a site that right, they are allowed to use it.

There are other red flags I watch for, such as giving up my right to legal action (“You agree to defend, indemnify and hold us harmless”), or the jurisdiction for any lawsuits (I’m not flying to another state in order to participate in a lawsuit).  But they’re not deal breakers.

In fact, very few terms are deal breakers for me when it comes to using a site.  Will I upload content if I don’t love the terms?  Hell no.  But will I create an account so I can follow other people and read along, yes, and I’ll upload content that I’m okay with being out of my control.  Sort of.

I’m not a lawyer; I’m just an online user who is very interested in the way sites collect information and do business.

3 comments

1 Persnickety { 08.21.14 at 9:12 am }

I too read those things.
And the complaints policies and the ability to ask for information to be removed.
Not a lawyer, but I spend a lot of time reviewing disclosure docs. And lately that has meant privacy policies. I am very aware of all of the ways in which nasty things are hidden.
I also spent a bit of time in the last couple of weeks discussing the most appropriate way to get users to agree with a TOS. Whether or not they could get away with “by logging in you agree with the TOS” versus a display of the TOS and the I agree button.
It’s also very useful to read the complaints policy information. Often the first point of contact will not be fully aware of the implications, and will try to fob them off.

2 Betty m { 08.21.14 at 2:30 pm }

I’m a lawyer and reading terms of service is something I almost never do but them I’m hardly the most avid interactor with Facebook, Twitter etc so I’m not that bothered with what people might do with my “look at this fabulous pool” posts. I think generally that following an only upload content you are happy to be out of your control policy is the best one in all circs.

3 Mali { 08.22.14 at 12:50 am }

Perhaps the way I can get around this is to only use sites and programmes and apps that you use. If it passes the “Mel Test” then it must be okay!

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