Startup Toolbox

Jay Parkhill June 3rd, 2008

Twitter and Adobe both got dinged this year for making statements in their Terms of Use that neither company exactly meant.  Twitter’s said that it reserved the right to “to warn and/or ban people who use their service to “abuse, harass, threaten, impersonate or intimidate other Twitter users”.  Adobe’s gave Adobe a license to use any photos anyone edited with Photoshop Express online service- for any purpose.

When faced with a request to warn and/or ban an alleged Twitter stalker, Twitter realized it didn’t want to take such an aggressive editorial stance at all and would rather let users be responsible for their own content.  Adobe corrected itself to say it didn’t plan to use anyone’s photos for just anything, so both statements were really mistakes.

As others have pointed out, terms of use are not complicated.  They do need to be correct for the situation, though.  Twitter and Adobe probably just grabbed someone else’s terms without a lot of thought and got nailed on it.  AOL got nailed much worse by the Ninth Circuit for changing terms mid-stream without properly notifying users of its newly-acquired Talk America service.

The mild irony is that any good lawyer would also grab other sites’ terms of use, but instead of finding one set, s/he would take a look at a few sites, pick and choose the best/most applicable provisions and create something tailored to the site’s actual business.

All of which goes to prove the old saw- haste makes waste.  It frequently doubles the legal fees too.

• Web , terms of use

Jay Parkhill April 23rd, 2008

A family vacation and a few important pieces of work that couldn’t be postponed meant that this blog got short shrift last week. Here are a couple of great tidbits from the blogosphere that I was finally able to focus on since getting home.

HBS Working Knowledge - Who Owns Intellectual Property?

Harvard Business School’s Working Knowledge newsletter has a good read on intellectual property in the digital age. It should really be called “How Do You Adapt When You Know Your IP is Going to Be Co-opted?”. Among other points, it notes that the (RED) campaign was expressly designed to be picked up freely by companies. The implication seems to be that it is similar to the GPL concept in software, where the license is free, but users of the software are restricted in what they can do with it downstream. In GPL’s case, the end product must generally also be free. In (RED)’s case proceeds must go to The Global Fund. Whether this is true or not, it is a nice example of an effort to promote viral growth of a brand among businesses as well as consumers.

I note as well that the HBS newsletter has conflicted feeling about the ownership of its own content. Most articles do not allow comments; a few are expressly designed to invite them. This article, appropriately, is one. HBS gets good comments. It should allow them more frequently, even if it meets losing some control over the content it puts out.

E-Commerce Law: Federal Court Upholds YouTube’s Terms of Use

This one is a bit wonkier. The relevant facts are that someone sued YouTube in Washington State even though the Terms of Use on YouTube’s site (you’ve read them, right?) specifically say that actions must be brought in San Mateo County, California. The court said that by using the site, plaintiff Bowen had agreed to the terms, including the choice of law provision.

This is another data point in the ongoing “legal discussion” of the validity of shrinkwrap, clickwrap and web site terms of use provisions. There is no ability to negotiate terms in any of these situations, so there is always some question whether certain provisions over-reach. In this case, the court decided that Bowen had expressly agreed to the terms with knowledge of them, and the San Mateo provision was therefore valid.

I still haven’t actually read the case, so I will reserve judgment on the facts- esp. whether Bowen was *actually* aware of the terms of use, or whether he just clicked “yes” at the appropriate moment.  If the former it’s caveat emptor (visitor?) unquestionably, but if the term was in there and he clicked yes without really reading then this case doesn’t move the line at all reasonableness of non-negotiated click-through terms.

I like that, I should say.  Non-moving lines are extremely helpful to those of us that depend on clickwrap and clickthrough agreements to get products in the market.

• YouTube , contracts