dann recently posted a new draft of the Terms of Service. This has resulted in a number of concerns being expressed by various noders. This node has been created with the express purpose of soliciting input. I do not expect any posts to conform to any noding convention, except for the use of paragraphs insofar as their lack would affect legibility. Linking is not required, nor do you have to post anything "for the ages" since this node may well be removed once it's served its purpose.

Before we go anywhere with it, I would like to point out and highlight the opening line in the ToS draft node:

This is a draft document, and several major revisions are expected before it goes into force.

It's not my intention to accuse anyone of overreacting but I understand that some noders were pretty upset by some of the clauses in the draft. I'll suggest that everyone concerned take a deep breath and take that first line to heart as much as, and even more than, any of the content following it. There will be revisions. Major revisions may be based on your feedback. Feedback that's useful and productive will be translated into legalese and then looked at again. The greatest idea on A4 paper can suddenly look like a recipe for trouble on legal paper. Or something gets lost or added in translation. Which may indeed be the problem with some of the points in the draft.

DO WE NEED A TERMS OF SERVICE?

Yes. Both the site as an organisation and its users (we as real people) are, legally speaking, persons entering into an agreement. The gist of this agreement is that we upload our writing and E2 distributes it. Both we and E2 need a document that clearly and unambiguously spells out the terms of this relationship insofar as each party's rights and obligations are concerned. It's better for us (and some people have asked for it) and it's better for the site if everyone knows where they stand. The lack of a ToS does absolutely nothing for the consistency of the staff's actions. This is something that many, many people have complained about in the past. Ground rules are necessary because the management can't keep on playing by ear and making up policies on the fly and as the need arises.

Now on the topic that seems to have caused the most debate and consternation. You've heard it from clampe. You may have heard it from Jack (who is very keen on getting more input but is currently underway somewhere, which is why I'm posting this), TheDeadGuy, or other admins who've been involved. You may have understood it to be unwritten but firm policy:

Everything2, BSI, and MSU have no designs on your intellectual property rights. You own what you post, period.

I understand that the wording in the draft may be suspect. I had to do a double take myself when I read it. But one reason for posting a public draft is to have more eyeballs reviewing it. In that sense it's been quite successful. I can pretty much guarantee that this part of the draft (here's the magic word again, draft) will be rewritten. Not because you or I object, to tell the truth, but because it is not well written and it does not reflect the management's intentions. That's why we call it a draft.

Creating a ToS is an administrative act with the interest of the site in mind. Say some litigious ex-noder decides to go Johnnie Cochran on us. The management needs to be able to point to something more tangible than "usual practice"--it needs a formal, written policy on certain matters, particularly those that could potentially expose the site to legal liability of some sort. Companies put "CAUTION: HOT" notices on things that are steaming not because they're liquid nitrogen but because you ordered piping hot coffee. To some extent, this follows that logic. The site needs to cover its back from a legal point of view.

The big question that follows is whether the ToS is acceptable to your customers. The management on E2 has a very close relationship with the userbase. dann and clampe are not sitting in some board room in Omaha directing our fate as an economic abstraction or as a game. They're in the front line and understand who we are and what we do. If your target audience is surfers, well, you probably won't want to put No Shirt, No Shoes, No Service in your Terms of Service. Likewise, with a bunch of volunteer contributors who are (and are entitled to be) protective of their writing, nobody's going to try and tell them that they're signing over their rights to the site or anyone else.

Although I think that the management has made itself clear, everyone is still welcome to submit ideas and concerns that they have regarding the ToS draft to this node. You may not hear directly from someone but least one and probably several members of the policy group will read your view and, if the concerns are valid and have not already been addressed, will bring them up in a future policy discussion. Should a number of people find it useful to discuss the subject more interactively, the catbox and the forum will both work. Of course you could still /msg dann, as the Newsletter suggests. This is quite effective. Honest.

rights and wrongs
When I read Section 5 of the Draft Everything2 Terms of Service, I was gobsmacked. I had always understood that E2 respected and honoured writers' rights. These new Proprietary Content Rights*, however, were the precise opposite, claiming the right to use, sell, sub-licence, and otherwise exploit noders' words. On top of that, they included the right to sell and sublicence your personal information. Very very not good is about the politest thing I can say about that.

A couple of conversations with clampe reassured me that this was not the intention, that there really was no intention of claiming these very extensive rights. (In other words, it seems to have been assembled from bits and pieces, and the explanatory gloss shows clearly that there is no real understanding of the rights being asked for.)

I've come across pretty much every flavour of rights grabbing terms within photography, so offered to take a bash at rewording this section so that it matches what I believe E2-as-an-organisation and E2-as-noders would be comfortable with. Something that gives E2 the right to publish your words within E2, but not run off and sell, reuse, or take control of anything you publish here.

How's this?
E2 does not claim ownership or copyright of any content you make available to include in E2.

By submitting, posting or displaying content which is intended to be available to the public on E2, you grant E2 a non-exclusive, worldwide, royalty-free licence to publish, distribute, and reproduce this content for the sole purpose of displaying and distributing E2. This licence terminates when you or E2 removes the content from the service.

By submitting content for publication within E2, you warrant that you have the necessary rights and permissions to do so.
in other words:
  • You still own your work, and control your rights over it
  • You can still assign or sell the majority of your rights to other people, or not, as you choose (except granting an exclusive licence to another person while it's published on E2)
  • E2 will not pay you for your work
  • E2 does not restrict you from using your material elsewhere.
  • Your material can be published anywhere in the world, as part of E2.
  • E2 can only publish and use your stuff as part of E2, and not for any other purpose (no books, no tshirts, no movies of the week).
  • When you take your stuff away, E2 can't use your stuff any more.
  • You can only publish things you have the rights for (ownership, public domain, rights granted by others, etc). You can't grant E2 a licence if it's not your right to do so
  • This is on the assumption that E2 is defined earlier in the ToS as the website and the website alone. Satellite projects in other media, such as podcasts, adverts, and all are not covered, and require additional permissions.
Does anything else need to be included?

edited to add: Just in case anyone is wondering, I think the rest of the draft ToS are a problem too--some parts contradict others, for starters--but the rights section was the priority for me. I'd not sign up to them as they stand, even if the rights section was fixed.




* in case there is any confusion, and because I've been asked to clarify...this is the section I am suggesting we swap out (other parts too, but, for now, this is the bit I've been working to suggest a fix for):

"Everything2 does not claim any ownership rights in the text, files, images, photos, works of authorship, or any other materials (collectively, "Content") that you post to the Everything2 Services. After posting your Content to the Everything2 Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By publishing or posting content, uploading files, inputting data, or engaging in any other form of communication through the Site, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication (including your identity and information about you, e.g. contact information, demographics, etc.) in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.

Without this license, Everything2 would be unable to provide the Everything2 Services. The license you grant to Everything2 is:

  1. non-exclusive, meaning you are free to license your Content to anyone else in addition to Everything2;
  2. fully-paid and royalty-free, meaning that Everything2 is not required to pay you for the use on the Everything2 Services of the Content that you post;
  3. sublicensable, so that Everything2.com is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Everything2 Services; and
  4. worldwide, because the Internet and the Everything2 Services are global in reach.

You represent and warrant that:

  1. You own the Content posted by you on or through the Everything2 Services or otherwise have the right to grant the license set forth in this section, and
  2. The posting of your Content on or through the Everything2 Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other moneys owing any person by reason of any Content posted by you to or through the Everything2 Services.

Everything2 Content is protected by copyright, trademark, patent, trade secret and other laws, and Everything2 owns and retains all rights in the Everything2 Content and the Everything2 Services."

Here are my musings as someone who has to deal with copyright on a daily basis in the software world.

A cursory review of the property rights in the terms of service ToS suggests that the author retains ownership. This is clear.

The ToS also says that E2 (whomever that legal entity is) retains the right to the content on E2. It is probably necessary at some point to say what/who E2 is and to whom rights have been granted. But even so, this is not truly concerning.

The troubling part is the few words "and you authorize others to do so". I posit this contradicts the prior statement. It suggests, for instance, that for anything I put on E2 I explicitly grant to unnamed "others" to take and publish the work, even commercially. I would move for those words be stricken. While I want to retain rights myself, and while I implicitly grant use rights to the legal entity E2 (again - whatever it is), I am not granting commercial rights to "others" in any way by noding.

Now - one could ask, why would I post anything on E2 in the first place - and don't I know that anything I put here is at risk of being "stolen" (if such a thing is possible) as it would if I had written it on the sidewalk in front of a grocery store. And the answer is that any reasonable person would imagine that is a tangible and acceptable risk. So perhaps such property rights discussion is moot, in any case.

Per the ToS, though, I suggest the following - say I post a missive on E2. I retain rights. E2 can sell/fold/spindle/mutilate my work as it sees fit for its own profit. I am clearly interacting with E2 and not, say, Random House (irrespective of my egotistical desires). So the contract is between me and whatever is E2 (please, someone needs to define E2 in legal terms) and it would seem reasonable that if E2 were to publish a hardcopy version of its node content that included my work, I'd be notified even though no such agreement is explicit in the ToS. I suggest words to that effect be added.

But what if E2 decided to publish and sell hardcopy version of my nodes exclusively? According to the ToS it can do that.

And further, what if I choose to delete my work as did several noders for the expressed purpose of withdrawing the work and all rights? Say I want to do this for the purpose of selling it for my own gain, which I have done in the past. Who owns the bits on the hard disk backup?

I suggest this is no different than someone who publishes an article in a magazine and then later sells the right to a book company to distribute as an anthology. Can Stephen King withdraw the stories he published in Playboy decades ago? No. But are they still in circulation -- also no. So withdrawl from E2 might also imply a desire to take that work out of circulation even though they may still exist in backups. Then can E2 restore the DB from backups without violating the authors rights? What if those nodes have been sold and are published by a book company? Would E2 be running afoul of said book company>?

Ye Gods.

In the end, what are the real risks or damages any of us could suffer that are greater than would already be the case with posting on E2? It seems to me the safest prospect for any author in this muddy scenario is to simply cease to put ones work on E2, or anywhere else on the public internet for that matter. And that is perhaps the greatest risk. Those who worry about copyright will simply not node here. Perhaps that's already happening.

For E2, even a ToS won't protect it from lawsuits if one of us becomes a really big name and tries to expunge the historical record. The cost of such cases alone would guarantee victory for the plaintiff, and that would be the end of E2. But that is already a possibility.

So the ToS really doesn't mean anything, except that E2 can sell space to companies who want there to be a ToS in place before they agree to the business.

Cheers







I agree wholeheartedly with tifraps raised issue - that of attribution. For instance, I have made six trips to various locations on the continent of Antarctica at U.S. taxpayer expense. As an explicit part of this deal the U.S. National Science Foundation takes ownership of any writing or photographs I produce while on this taxpayer funded excursion. However, they explicitly allow me, as producer of said work, the perpetual right of attribution.

So, if you were to type in my name juxtaposed with "Antarctica" into the Google website, it would return with numerous web locations, most of which were the sanctioned use of a particular photograph. That photograph is one I took while walking alone between Lake Fryxell and Lake Hoare camps in the Taylor Valley in Antarctica. The photo was taken while standing on the ice surface of Lake Fryxell, looking toward the Canada Glacier.

The picture forever resides in the USAP and NSF databases and they are free to distribute it without my consent. However, anyone reproducing that photo must attribute both NSF and me by name. And when I say "must" I say it because the NSF does not release the full-sized photo to anyone who does not agree to their ToS.

From the volume of attribution I receive I presume this reproduction is happening all the time. For instance, my photo was used on the cover of the NSF Holiday Card some years back. A large reproduction hangs in the NSF HQ in Washington DC as well as in USAP HQ in Denver. It has been used by major news outlets like AP and various and sundry newspapers across the U.S. as well as internationally.

I have never been paid a cent for the photo, but I have been attributed. This is not to say "theft" has not occurred outside the NSF ToS, though Lord knows how you steal something that doesn't carry with it a price or other easily extracted rights. But it does mean that for people who agree to the ToS I am attributed. This is to say that large media outlets and other respectable registered businesses in various countries do attribute me as the photographer. And truthfully, they're the outlets with the credibility and I am pleased to have my name associated with the work via their conduit. In addition, if someone were to see my photo without attribution, given how ubiquitous it is via the credible services, they might actually recognize it as mine due to the attribution rule, dutifully followed by respectable outlets.

Now, here at E2 I wonder how attribution could be followed. Generally, we all are writing here under a nom d' plume, and so attribution would be, one suspects, to that name. Unlike the NSF who needed my passport information to do the FBI checks necessary for me to qualify for Antarctic service, nobody at E2 can be truly certain I have provided my name anywhere on this site. So I can only be known to them as iceowl.

I would posit, though, that attributing any of my work to iceowl in a separate publication stream by E2 in a yet-to-be-determined for-profit scheme in which I do not take part would implicitly be enough for me as a writer. If that were not the case I would never write anything here.

Bottom line - Author beware. Put nothing on E2 for which you wish to retain full ownership. It's that simple. And for most people, I suspect it's a non-issue.

I too often work with copyright contracts, not as a company but as an individual, both as a sculptor who makes public art and as an author published in the USA, Japan and several European Countries.

As a sculptor I always use a standard National Artists Association contract, which has been written on behalf of artists and refined over many years. As an Author I am usually at the mercy of far more avaricious organisations, namely publishers, and the contracts I am forced to negotiate are far more exploitative. These contracts have usually been rattled together by teams of lawyers whose main concern is watching the companies back.

The clear difference between these two types of contract is in the perspective from which they are written, arts contracts are written in favour of the Author of the work, publisher’s contracts favour the prospective exploiter of the work.

You can spot the difference with your eyes closed: Artists contracts start by affirming total ownership and rights belonging to the author, then seek to define the terms of limited licence; such as licence to reproduce, in defined forms, territories and situations, whether sublicensing is allowed, and for what recompense.

Publishers contracts usually come at it from the other side, assuming that the goods and the rights to it are basically theirs, then adding clauses that make concessions towards the author that are usually painfully laboured and dubious in law. As the rights to any work reside with the author in the first place this approach is always bound to be torturous, something akin to describing someone else only in terms of yourself.

The copyright section of the proposed TOS appears to me to have been drafted from the latter type of contract. What most people forget about contracts, usually because money is being dangled in their face, is that a contract is an agreement, therefore it should reflect both parties interests and seek to express terms that both parties are satisfied with. In the case of E2 this shouldn’t be too tricky, there is an established status quo that most seem content with. When you bear in mind that the website consists almost entirely of the contributions of its authors, that money is not being dangled in the authors faces, and that the proprietors of the E2 site also have a product and should be able to expect to gain value from it as much as the authors gain reputation.

We would be foolish to expect the owners of E2 (whoever they are) and their successors (whoever they may become) not to wish to make money out of the site, and any attempt by us authors to prevent this may well be throwing the baby out with the bathwater as we all stand to gain from E2’s future success or fame. But at the same time the content of this site will surely suffer if the authors feel they are being exploited. One key aspect of this potential exploitation is the perceived loss of authorship that will result if E2 subs out its licence to reproduce. I say perceived because at the moment we all understand that our work is universally available, but we also know that it is available under our name, or at least our username. The right of attribution has not been mentioned anywhere in the draft TOS, yet it is arguably the most crucial part of copyright law for authors of works, after the financial stuff (which we have not got in the case of E2). In fact the right of attribution cannot be sold, licensed or done away with in the case of original works anyway. Anything that we write as authors must be attributed to us, regardless of how complex the chain that leads to the final publisher, or we have right to redress in law. All we need to do to ensure this is to assert our moral rights of attribution. I am aware that the right of attribution is recognised as law in almost every country other than the USA where it is debatable, however as E2 is published internationally it could specifically state the international convention with which it will abide, as these are reciprocal under The Berne Convention in almost every country.

I would like to suggest then that the copyright section of the TOS begins by stating:

At all times copyright and ownership of the reproduction rights to any works included in the E2 website remains solely and entirely the property of the author of the work.
Then the licence granted to E2 is set out as something like:
By posting works on this site the author agrees to grant to E2 and its successors (exactly who this is to be specified in a previous clause) the following: 1 Non-transferable licence to reproduce electronically and physically throughout the world, and to permit third parties to publish the same works as it sees fit (this is inevitable with rss feeds etc, but leaves control in E2’s hands – this is negotiating power for E2).
Further clauses should be included to cover:
2 exclusion of re-written or mutilated works, except for excerpt, précis and abstracts. (This is a primary moral right that all authors hold, by right, and should not give away lightly.) 3 that the licence expires when the work is removed (by author or E2) and that if so, all rights revert to the author. 4 that any work present on E2 at the time of reproduction is deemed to be subject to the same terms of licence even though it may have subsequently been removed from the website. (This is to ensure that the terms aren’t forfeit once further published; protecting both E2 and the author of any further published work. Meaning also that E2 cannot publish retrospectively any removed work that it may have archived.) 5 What money is due to the author for the licence to reproduce (ie nothing) and that E2 can claim to have satisfied it. or any other financial arrangements. 6 Any other agreed terms that are deemed important.

Finally in nice big letters:

Right of Attribution.E2 agrees to attribute the work of the author to the known authors name or username at all times and to assert the authors right to attribution to any third party.

I had intended to post a short reply to the TOS posts above, but it seems that it has grown into a monster. These are simply my initial responses, off the top of my head to the interesting issue that appears to have developed, I am sure that there is much more that I could add to this, especially given some time to consider the issue more thoroughly, but feel that it is best to stop now. I am sure you have got the idea.


In reply to Iceowl’s addenda above I would like to say this: Despite agreeing with the majority of Iceowl's write-up, regarding copyright ownership, I feel that Iceowl tends to present a rather despairing view. It IS the case that as authors we each have automatic rights to our work that are always upholdable in law, unless we agree to licence the reproduction rights, which is the only right that can be transfered to someone else. It isn't even necessary to append the © symbol. Of course it is another thing to say wether we have the wherewithal to uphold those rights, by for instance taking someone to court. The point is we would be justified in law to do so. This is an identical issue to video piracy, it happens, it is illegal and individuals can be convicted for doing it, but in practise it only ever goes to court when the losses or gains are worth the expense of going to law. Not being caught doesn't make it legal.

Iceowl says “Bottom line - Author beware. Put nothing on E2 for which you wish to retain full ownership. It's that simple." Iceowl is being a bit misleading here. If you have not expressly granted the rights in something that you have written to someone else, It remains yours, no matter who unlawfully reproduces it (yes even if Time Life decides to, if they haven’t got a paper trail leading back to your agreement, and you can prove you are the author, they would be pirating your work).

Iceowl does have a good point when he says "(And) for most people, I suspect it's a non-issue.” We want our writing on the net, that why we use E2. Now we all know that any writing spreads across the internet like wildfire, but just as in the case of photographs, if we see something that we have written, and haven’t sold, we could assert our rights to it, and if necessary take the issue to court, if the losses or gains are worth the expense of going to law.

Iceowl’s Antarctic example demonstrates the dual nature of copyright very well. He has sold the reproduction rights (by being funded to travel, etc) to the U.S. National Science Foundation. They own that right and now police its use. But Iceowl’s right to attribution is still his, what is more the U.S. National Science Foundation is legally bound to police this right for him too.

Somewhere between reproduction rights and rights of attribution exists the right for the work not to be mutilated or changed, this usually resides with the author too – or it should, in order to avoid someones name being attributed to something that has been changed to such an extent that it could ruin the authors reputation. In the UK this issue was the basis for a case between the artist Bridget Riley and Pretty Polly Tights who used one of her paintings for a tights advertisement without consent to add naked legs to it.

The more that I read about this issue, the more it seems to me to be an opportunity for E2 to solidify its position as an unique entity on the internet. The reason that I say this is that in almost every site where Artists or authors are invited to post their work, there is a catch, a copyright catch or a financial one. E2's strength is the creativity and diversity of the content that it contains. If E2 takes the trouble now to craft a liberal, non-exploitative copyright agreement, one so permisive that even well known authors would be willing to use it, the site will become unique for that alone. In doing so the current userbase will not migrate and the quality and diversity of the work will not suffer, no doubt it will increase as its competitors become more blandly uniform.

If the author's right to the work is to be inviolate, E2 must prohibit Content Editors from performing any editing of content.

Under this draft, the volunteer CEs could potentially find themselves named in lawsuits, even where E2 (whatever that is) has seemingly protected itself. You start slinging around the legalese, you're inviting trouble.

Hi all-

I wanted to give you an update on where we stand on this.

dann and Jack are sorting out the feedback the community has given. My sense is that we have two possible directions, with a chance to mix the two:

  1. Go back to the old way. We'd have to add the DMCA stuff (as we just had yet another case of someone posting proprietary content on E2), but otherwise just stick with "Be Cool".
  2. Hire an honest-to-goodness lawyer to work on the ToS with the following injunction: Protect the authorship of the writers.

Heyoka is still chiming in regularly on the process, and we've all read the various comments people have made. I doubt there's any way we can make everyone happy. My main goals are to maintain the rights of the users, and to protect the volunteer editors from harassment. Those should be your main goals too.

So that's where we stand right now. We're taking a deep breath. I know it's tempting to want this over with so we don't have to think about it anymore. However, Grandpa Clampe always said "Measure twice, cut once", and I think that chestnut applies here.

Best,
clampe

Log in or registerto write something here or to contact authors.