Online Terms of Service, standard clauses, non-standard clauses, and a crash course in the CDA

[synecdochic]

I'm seeing a lot of misunderstandings about standard language used in online content providers' Terms of Service, and specifically how it's being used in FanLib's Terms of Service. (For those of you who have missed the FanLib controversy, check out metafandom and life_wo_fanlib.) I am not a laywer and the following analysis is not legal advice. However, I've spent the

Comments

[cofax7]

Awesome analysis, thank you. I caught the bit about FanLib keeping a member on the hook after they pulled the material, but didn't realize that "defend" was in addition to "indemnify"; I tend to mush them together in my brain.

And d'oh on the safe harbor provisions. This is why I don't do IP or internet law.

Thanks.

[synecdochic]

It's the perpetuity of indemnification that really creeps me out, honestly, but that plus the addition of "defend" to the indemnify & hold harmless, plus the potential for loss of safe harbor -- yeah. People who are saying "but the very same language is in every ToS from every website ever!" are just flat-out wrong...

[cofax7]

ALso, and I don't know if you caught this, but Chris Williams had been responding to that question by claiming that "all you have to do is delete your story and you'll be okay, the corporations wouldn't have any reason to come after you," totally eliding the fact that it's FanLib the fan writer has to worry about, not the corporation.

Such misrepresentation. I'm shocked, shocked I tell you.

[synecdochic]

You'd almost think they were trying to make money off fanfic or something.

(Excuse me. Monetize. I keep forgetting my buzzwords.)

[tesserae_]

You've seen this, right? Somebody tracked down their investor brochure and it makes a lot of the whys behind their TOS clearer, I think!

[synecdochic]

Oh yeah, I don't even want to get into their VCs and all the dirt I know there, or I'll never work in this town again ;)

[niqaeli]

My only response to the FanLib stuff other than "uh, no thanks!" is actually in reaction to astolat's attempt to organise The One True Archive. And my response consists of, "...but how the hell are you going to fund it? Do you actually comprehend the amount of information you're talking about moving and how much it costs?"

I just don't quite have it in me to wade into the discussion and find out what they're thinking. Maybe they do! But I'm, uh, not going to hold my breath for the One True Archive lasting if it does happen.

[niqaeli]

I know she didn't. I still worry because I honestly think the undertaking proposed is actually an order of magnitude or two larger than most people realise.

I respect the hell out of the effort people are willing to put into it and if they can find a model that really works? I'm all for it.

[synecdochic]

If you brought a big liability down on the head of LJ through your actions, believe me, they wouldn't be abandoning their right to indemnification just because you later deleted your account.

Yes, but the point of the safe-harbor of the provisions of the CDA is that the actions of an individual user can't produce liability for an OSP, unless the OSP serves as a co-publisher of the information. (Check Fair Housing Council of San Fernando Valley v. Roommates.com, LLC [.pdf link] for the recent decision that's got all of us biting our nails.)

[msilverstar]

Wow. My parents helped found the Fair Housing Council of the San Fernando Valley, back in the day when the whole place was segregated. Odd coincidence.

[rez_lo]

God, I forgot about safe harbor. Thank you very much for the analysis.

[synecdochic]

It's actually causing me serious headaches this week, so it's on the top of my mind. *g*