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The Arts
May 31-June 7, 2006

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Fred von Lohmann

Photo courtesy of Creative Commons
Agree to Disagree: Electronic Frontier Foundation intellectual property attorney Fred von Lohmann says MySpace's new user content agreement isn't as ironclad as it may seem.

Terms of Enslavement?

In the wake of our cover story, a new MySpace controversy sheds light on the mysterious 'Agree' button

By Paul Davis

It's a forgone conclusion that few people actually read the terms of agreement for free web services, unless they're driven to do so by some unfortunate design choice or the legally questionable services a given site may provide. But as sites begin to offer seemingly endless storage, promotional and distribution opportunities, a generation of independent musicians, artists and writers is ending up in the difficult position of giving up certain legal copyrights for the services offered. After coming of age in a world of free email accounts, users of the online communities that Newsweek affectionately titled "Web 2.0" may be surrendering their legal rights over copyrighted work they have created without a second thought.

While we'll leave it to the bloggers, web designers and IT folks to argue over the precise definition of "Web 2.0," it largely refers to newer sites in which the bulk of the content is provided by the users through a shared social network. Chances are you're already using one of these sites: Google's Blogger, YouTube, Yahoo's Flickr, LiveJournal and the much-maligned (including in these very pages) MySpace all qualify. These services not only share a user-created content-driven experience, but also vague Terms of Agreement which afford the companies much more latitude to do what they please with your works than you might expect when you click the "Agree" button in anticipation of uploading your newest song or latest rant about the puzzlingly inappropriate name of Nintendo's new console.

MySpace message boards have been alight for weeks with alarmist messages claiming that the site's recent changes in its terms of agreement grant the business, and by extension, its parent company News Corp, the right to license and distribute any music, photos or written content uploaded to the site to any outside distributor they choose, with no legal obligation to compensate the owners of that content. It's not hard to see how such fears would arise, given the vagaries of the legal language used in the statement (which users were not informed of, per the previous terms of agreement.)

The new terms and conditions, dated May 1, 2006, give much more latitude with its rights to reproduce and distribute user content than the previous terms:

By displaying or publishing ("posting") any Content, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials (collectively, "Content") on or through the Services, you hereby grant to, a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services.

Many members of the service were alarmed by the alteration, "with the right to sublicense through unlimited levels of sublicensees," taking that to mean that MySpace was reserving for itself the right to distribute and reproduce users' creative work without paying or consulting with the creators of the work.

However, according to Fred von Lohmann, intellectual property attorney for the Electronic Frontier Foundation, these changes are not as dire as they seem. "The MySpace statement isn't iron-clad; I'd think you'd have a good argument that they couldn't take your content and cross-post it to the American Idol website," he says. "Obviously, if the folks using MySpace actually had a lawyer in this game, they would have defined things more carefully, but obviously you don't. But this doesn't seem to me to be the kind of thing that would allow MySpace to take your content and put it on a compact disc and sell it without your further permission."

However, Lohmann warns that the broad language of such statements gives vaguely defined rights to these Internet content providers, something which should give the users pause. He explains, "It's a bit murkier than you might like, in that it's not clear to me whether they can sell a CD with your music on it through the website. If they started a store, could they sell CDs with your music on them without payment to you? That's not crystal clear to me. It's defined as 'any other features, content or applications,' and I don't know if a court would think a music store is a feature, content or application."

Noting that while artists and musicians uploading their works should, in a best-case scenario, get legal advice, Lohmann states the best second defense is to familiarize oneself with the basic concepts of copyright law and be aware of what you are agreeing to when you accept the Terms of Agreement. "The best thing to do is hire a lawyer and have a lawyer review everything before you do it, but the reality is that nobody who isn't already rich can afford that. The second best thing you can do is educate yourself. There are fortunately quite a few resources out there," he notes. "The basic concepts aren't that hard, but require some familiarity with the background principles. It's not only good for protecting your own interests, but good for the community as a whole for all of the artists to review and compare the terms for all of these services"

Lohmann emphasizes, however, that companies such as MySpace are ultimately at the mercy of their users. "Something like this has happened with the free web hosting services popular back in 2000 and 2001, with the rise of Yahoo! Geocities, Xoom and Tripod. When all the services had the same price, which is zero, the only way to compete was to offer people better terms," he explains. "The users got very sophisticated about the terms of services that were offered. Geocities made a change like this, and when users didn't like it and complained, Yahoo changed their terms. MySpace is hard because they make it as 'sticky' as possible--you can't just skip out, since you have all your friends on there and have the social networking aspect going on. You need to read and compare these terms, and if something seems unclear, you need to complain and see if they respond. And if they don't, take your business elsewhere."

Oftentimes, users of sites such as MySpace find themselves in the uncomfortable situation of being suspicious of the terms of such services, but beholden to the "stickiness" of these sites. Individuals using them to promote their creative work often feel they risk abandoning their fans by leaving an online community. Lohmann finds this troubling, as he notes artists using these services lose a certain amount of control over how they are distributing their works online. "If you own your own website, you can move it anywhere you like and you can take your domain name with you. If your hosting service isn't treating you well you can vote with your feet and go somewhere else," says Lohmann. "If people get used to your MySpace URL, and you decide you want to leave MySpace, you can't take the URL with you. ... it may be pretty powerful for a lot of people, but it also means you give up a lot of control. MySpace adds a lot of cool features, but you also create this situation where you're somewhat beholden to Rupert Murdoch."

Despite the vague statements issued by these sites, Lohmann finds the most alarming issue raised by these recent changes to be the way in which these much-vaunted Web 2.0 sites consistently reserve the right to change their terms and conditions without notifying their users, illuminated by these recent changes to the MySpace terms. "Bottom line, you are granting MySpace very broad rights to do whatever it wants with your stuff when you upload," states Lohmann. "Artists need to be thinking about this stuff. These sites can change these terms any time they like, and they don't seem to feel beholden to actually let you know about it. In some ways that's the most outrageous thing of all. It seems awfully unfair. Compare it, for example, to what Tivo did when they changed their privacy policy a few weeks ago. They popped a screen up on every Tivo screen in America letting people know. Too often in the online world, people don't seem to think they have any obligation to even tell you."

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