Online Terms of Service, standard clauses, non-standard clauses, and a crash course in the CDA
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 past five years working for A Certain Online Service Provider We All Know And Love, and those five years have all included a firm grounding in industry standards, the legal issues surrounding an online content provider's obligations and responsibilities, and Terms of Service construction and enforcement.
I believe that FanLib's Terms of Service are, in places, detrimental to users of the service. However, the reason I believe this is partially different than the reasons I'm seeing posted. My reasoning requires the assembly of several pieces together, and an understanding of a critical piece of United States law as applied to online service providers:
Let's use LJ's ToS as a comparison point, because -- well, actually because LJ's ToS was a micro-variant of the ToS every single online service provider started around the same time used: the one that everyone stole from Geocities. (You will find it in a lot of places; we joke that it was the boilerplate Web 1.0 ToS.)
I'll skip over the acceptance of terms, description of service, privacy policy, etc, etc, since I don't think anyone's questioning that. If you've got a question about any of the language used in there, just holler.
In all of these pieces, emphasis is mine, and it's intended to highlight clauses of the legalese that are not, in my experience, industry standard. I have had to cut and move around a lot of both sets of Terms of Service to match up specific clauses. You can read both documents without my emphasis and rearrangings:
LiveJournal.com
FanLib.com
During all of this, I'm using OSP ("online service provider") as a shorthand for "anyone who runs a website or other internet presence".
There are, in particular, clauses in FanLib's ToS that, when assembled, become troublesome under one of the Big Two pieces of legislation that any OSP is concerned with: the Communications Decency Act. (The other one is the Digital Millennium Copyright Act, which I'll post about later.)
47 USC 230, specifically 47 USC 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
This clause, often known as "safe harbor" or "CDA safe harbor" (to distinguish it from the DMCA safe harbor), actually makes it near-impossible for someone to sue an OSP for content produced by its customers (assuming several conditions are met). What does this mean? It means that, in essence, the bog-standard "indemnify and hold harmless" clauses in most Terms of Service are obsolete. The only way that an OSP can be sued over user content is if the OSP assumes an editorial role -- that is, if they filter, pre-screen, police, edit, correct, or otherwise alter or transform user content. (Further reading on 47 USC 230)
Remember this as we go through these pieces:
LJ
FanLib
You agree to indemnify and hold LiveJournal, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any alleged claim or demand, including reasonable attorney fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another, whether you are a registered user or not. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.
You agree to defend, indemnify and hold harmless FanLib, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Your use of and access to the Website; (ii) Your violation of any term of these TOS; (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of Your Submissions caused damage to a third party. This defense and indemnification obligation will survive these TOS and Your use of the Website.
All Content posted to LiveJournal in any way, is the responsibility and property of the author. [...] LiveJournal reserves the right, without limitation except by law, to serve any user Content on the web, through the downloadable clients and otherwise.
FanLib reserves the right at all times to disclose any information as FanLib deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FanLib's sole discretion. [...] FanLib claims no ownership or control over Your Submissions. You retain all of Your ownership rights in Your Submissions. However, by submitting the Submissions to FanLib, You hereby grant FanLib a non-exclusive, worldwide, and royalty-free license to use, reproduce, distribute, and display the Submissions in connection with the Website. FanLib may prepare derivative works from Your Submissions solely for the purpose of promoting and showcasing them in connection with the Website. FanLib shall not make any use of your Submissions or exercise any of the rights to Your Submissions granted to it hereunder other than in connection with the Website.
Should any Content that you have authored be reported to LiveJournal as being offensive or inappropriate, LiveJournal might call upon you to retract, modify, or protect (by means of private and friends only settings) the Content in question within a reasonable amount of time, as determined by the LiveJournal staff. Should you fail to meet such a request from LiveJournal staff, LiveJournal may terminate your account. LiveJournal, however, is under no obligation to restrict or monitor journal Content in any way;
FanLib also reserves the right to decide whether Content or a Submission is appropriate and complies with these TOS for violations other than violations of intellectual property law. FanLib may remove such Submissions and/or terminate a Member's access for uploading such material in violation of these TOS at any time, without prior notice and at its sole discretion.
No, I don't think those emphasized parts are intended to be a rights-grab, in which FanLib will take content submitted to them and republish them in another form. I think it's an expanded version of the same language that's in LJ's ToS: a non-exclusive rights assignment to allow the OSP to serve provided content on the OSP's own site. (If that language wasn't explicitly spelled out in the ToS, someone could submit something, and then turn around and say hey, I wasn't authorizing you to show it to people; I was uploading it for private storage, and you are now in violation of my rights.)
FanLib's rights assignment is far, far broader than LJ's, in that it also includes derivative works (although today's revision does, at least, attempt to communicate that the derivative works will only be used in conjunction with the website). My best guess, based on standard practices, is that this clause is intended to cover both the excerpts of various fics shown in the top bar of the site, and the possible use of user content in marketing materials, advertising (for FanLib, on other sites) and press material. This is only a guess. The ToS permits other use. Each individual person will have to decide if that's okay with them.
But.
There is a key difference between LJ's ToS and FanLib's, and it lies in the bits I've bolded above: LiveJournal may call upon you to retract, modify, or protect; FanLib may remove such Submissions and/or terminate a Member's access for uploading such material.
The difference is that LJ doesn't edit your content. Ever. No smart OSP will, because if they edit your content, your account, your writing, your pictures, your photos, etc, etc, they run the risk of losing safe harbor status. If they lose safe harbor under the CDA, they can be deemed the publisher or co-publisher of the material. If they are deemed the publisher or co-publisher of the material, they become liable for any infringements concerning that material. (This has already happened in several cases.)
With LJ, it's all-or-nothing. If content is deemed a violation of the ToS, you have the option to edit or change it yourself, or your account's suspended. FanLib is reserving the right to edit your content, selectively display or block access to certain content, or specifically filter the display of content, and if they do so as the ToS is written -- and they may not -- they most likely wouldn't be covered under the safe harbor of the CDA. This part is FanLib's problem.
It stops being FanLib's problem when you go back to the "indemnify and hold harmless" clause up top. It's standard language in any ToS, but there are two points where FanLib diverges: the "defend" in addition to the "indemnify and hold harmless", and the provision that says that this obligation is not terminated when you terminate your membership with the site.
This means that if someone sues FanLib for one of their users publishing some illegal, defamatory, or copyright-infringing material, and the courts determine that FanLib is a co-publisher of the material, that user is obliged under the ToS to participate as a co-defendant in the suit, and pay any and all court costs and attorney's fees.
I'm not cool with that. Are you?
I'm tapdancing over the top of a lot of this because getting into the nitty-gritty would take for-fucking-ever, and I'm not even going to touch the copyright part of things (because explaining the DMCA would take a few months or so), but if anyone's got questions about why a Terms of Service might contain specific language, what laws it's attempting to address, or what industry-standard best practices are, feel free to direct 'em here. (Although we're leaving for a group offsite event tomorrow evening and then I'm traveling next week, too, so I might not be as available as I usually am.)
I believe that FanLib's Terms of Service are, in places, detrimental to users of the service. However, the reason I believe this is partially different than the reasons I'm seeing posted. My reasoning requires the assembly of several pieces together, and an understanding of a critical piece of United States law as applied to online service providers:
Let's use LJ's ToS as a comparison point, because -- well, actually because LJ's ToS was a micro-variant of the ToS every single online service provider started around the same time used: the one that everyone stole from Geocities. (You will find it in a lot of places; we joke that it was the boilerplate Web 1.0 ToS.)
I'll skip over the acceptance of terms, description of service, privacy policy, etc, etc, since I don't think anyone's questioning that. If you've got a question about any of the language used in there, just holler.
In all of these pieces, emphasis is mine, and it's intended to highlight clauses of the legalese that are not, in my experience, industry standard. I have had to cut and move around a lot of both sets of Terms of Service to match up specific clauses. You can read both documents without my emphasis and rearrangings:
LiveJournal.com
FanLib.com
During all of this, I'm using OSP ("online service provider") as a shorthand for "anyone who runs a website or other internet presence".
There are, in particular, clauses in FanLib's ToS that, when assembled, become troublesome under one of the Big Two pieces of legislation that any OSP is concerned with: the Communications Decency Act. (The other one is the Digital Millennium Copyright Act, which I'll post about later.)
47 USC 230, specifically 47 USC 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
This clause, often known as "safe harbor" or "CDA safe harbor" (to distinguish it from the DMCA safe harbor), actually makes it near-impossible for someone to sue an OSP for content produced by its customers (assuming several conditions are met). What does this mean? It means that, in essence, the bog-standard "indemnify and hold harmless" clauses in most Terms of Service are obsolete. The only way that an OSP can be sued over user content is if the OSP assumes an editorial role -- that is, if they filter, pre-screen, police, edit, correct, or otherwise alter or transform user content. (Further reading on 47 USC 230)
Remember this as we go through these pieces:
LJ
FanLib
You agree to indemnify and hold LiveJournal, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any alleged claim or demand, including reasonable attorney fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another, whether you are a registered user or not. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.
You agree to defend, indemnify and hold harmless FanLib, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Your use of and access to the Website; (ii) Your violation of any term of these TOS; (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of Your Submissions caused damage to a third party. This defense and indemnification obligation will survive these TOS and Your use of the Website.
All Content posted to LiveJournal in any way, is the responsibility and property of the author. [...] LiveJournal reserves the right, without limitation except by law, to serve any user Content on the web, through the downloadable clients and otherwise.
FanLib reserves the right at all times to disclose any information as FanLib deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FanLib's sole discretion. [...] FanLib claims no ownership or control over Your Submissions. You retain all of Your ownership rights in Your Submissions. However, by submitting the Submissions to FanLib, You hereby grant FanLib a non-exclusive, worldwide, and royalty-free license to use, reproduce, distribute, and display the Submissions in connection with the Website. FanLib may prepare derivative works from Your Submissions solely for the purpose of promoting and showcasing them in connection with the Website. FanLib shall not make any use of your Submissions or exercise any of the rights to Your Submissions granted to it hereunder other than in connection with the Website.
Should any Content that you have authored be reported to LiveJournal as being offensive or inappropriate, LiveJournal might call upon you to retract, modify, or protect (by means of private and friends only settings) the Content in question within a reasonable amount of time, as determined by the LiveJournal staff. Should you fail to meet such a request from LiveJournal staff, LiveJournal may terminate your account. LiveJournal, however, is under no obligation to restrict or monitor journal Content in any way;
FanLib also reserves the right to decide whether Content or a Submission is appropriate and complies with these TOS for violations other than violations of intellectual property law. FanLib may remove such Submissions and/or terminate a Member's access for uploading such material in violation of these TOS at any time, without prior notice and at its sole discretion.
No, I don't think those emphasized parts are intended to be a rights-grab, in which FanLib will take content submitted to them and republish them in another form. I think it's an expanded version of the same language that's in LJ's ToS: a non-exclusive rights assignment to allow the OSP to serve provided content on the OSP's own site. (If that language wasn't explicitly spelled out in the ToS, someone could submit something, and then turn around and say hey, I wasn't authorizing you to show it to people; I was uploading it for private storage, and you are now in violation of my rights.)
FanLib's rights assignment is far, far broader than LJ's, in that it also includes derivative works (although today's revision does, at least, attempt to communicate that the derivative works will only be used in conjunction with the website). My best guess, based on standard practices, is that this clause is intended to cover both the excerpts of various fics shown in the top bar of the site, and the possible use of user content in marketing materials, advertising (for FanLib, on other sites) and press material. This is only a guess. The ToS permits other use. Each individual person will have to decide if that's okay with them.
But.
There is a key difference between LJ's ToS and FanLib's, and it lies in the bits I've bolded above: LiveJournal may call upon you to retract, modify, or protect; FanLib may remove such Submissions and/or terminate a Member's access for uploading such material.
The difference is that LJ doesn't edit your content. Ever. No smart OSP will, because if they edit your content, your account, your writing, your pictures, your photos, etc, etc, they run the risk of losing safe harbor status. If they lose safe harbor under the CDA, they can be deemed the publisher or co-publisher of the material. If they are deemed the publisher or co-publisher of the material, they become liable for any infringements concerning that material. (This has already happened in several cases.)
With LJ, it's all-or-nothing. If content is deemed a violation of the ToS, you have the option to edit or change it yourself, or your account's suspended. FanLib is reserving the right to edit your content, selectively display or block access to certain content, or specifically filter the display of content, and if they do so as the ToS is written -- and they may not -- they most likely wouldn't be covered under the safe harbor of the CDA. This part is FanLib's problem.
It stops being FanLib's problem when you go back to the "indemnify and hold harmless" clause up top. It's standard language in any ToS, but there are two points where FanLib diverges: the "defend" in addition to the "indemnify and hold harmless", and the provision that says that this obligation is not terminated when you terminate your membership with the site.
This means that if someone sues FanLib for one of their users publishing some illegal, defamatory, or copyright-infringing material, and the courts determine that FanLib is a co-publisher of the material, that user is obliged under the ToS to participate as a co-defendant in the suit, and pay any and all court costs and attorney's fees.
I'm not cool with that. Are you?
I'm tapdancing over the top of a lot of this because getting into the nitty-gritty would take for-fucking-ever, and I'm not even going to touch the copyright part of things (because explaining the DMCA would take a few months or so), but if anyone's got questions about why a Terms of Service might contain specific language, what laws it's attempting to address, or what industry-standard best practices are, feel free to direct 'em here. (Although we're leaving for a group offsite event tomorrow evening and then I'm traveling next week, too, so I might not be as available as I usually am.)