Re-reading the TOS
May. 31st, 2007 09:40 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
sunnyskywalkerI've read through this before, but some of the implications didn't sink in last time. This has been most enlightening, but not especially comforting. Some points of interest follow.
First, from the Legal Information, a rule:
Do not spam the site or any account on the site.
This is a perfectly good rule. I have no quibbles with it.
However, I can't find a definition of "spam," and that does worry me. Hypothetically, say there is some incident which causes many people to wish to register concerns or complaints. And say that these people start typing their complaints when there are only a few pages of similar complaints, but by the time they post them, there are more like 50 pages. And say further that each person then responds to one or two other comments, or perhaps comments again to express frustration that the site has not responded in a timely manner.
Does commenting on a nearly-maxed-out post with a statement similar to thousands of others count as spam according to LiveJournal? I would like some reassurance that it does not. I'm sure they're sick of that pirate song over at HQ, and who's to say they won't just lump everything after 30 (or however many) pages together and call it spam? I sure hope they wouldn't, given how badly such mass action went for them recently, but again, I'd like some clarification in their policy as reassurance.
On to the TOS. Note: the TOS says it was last modified on April 18, 2006.
I. ACCEPTANCE OF TERMS
LiveJournal, Inc., dba LiveJournal.com, ("LiveJournal") provides the following service to you, subject to these Terms of Service ("TOS"), which may be updated periodically without prior notice.
This is fairly standard, and I don't argue with their right to change their terms. It's just better policy to notify people, yes? You wouldn't want to remind people over-much of the Ministry for Magic changing Harry Potter's hearing time without notifying him, or of Cornelius Fudge shouting, "Laws can be changed!" So. No quibbles with the actual right, just emphasizing that just because they can do something does not always mean they should.
IX. MODIFICATIONS TO SERVICE
LiveJournal reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time....
XI. TERMINATION
You agree that LiveJournal, in its sole discretion, may terminate your password, journal, or account, and remove and discard any content within the Service, for any reason, including and without limitation, the lack of use, or if LiveJournal believes that you have violated or acted inconsistently with the letter or spirit of the TOS... LiveJournal may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that LiveJournal may immediately deactivate or delete your LiveJournal journal and all related information and files.
And in some circumstances, that's okay too. But once again, it's usually better policy to give notice. For instance, when discontinuing the Service of reading groups.
XIV. Journal Content
1. ...Within the confines of international and local law, LiveJournal will generally not place a limit on the type or appropriateness of user content within journals....
GENERALLY? This looks like a big loophole to me. What sort of exceptions are we talking about here?
2. 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...
Right here they indicate that they think the better course in the case of legal but "offensive or inappropriate" material is to warn first and delete later only if necessary. Of course, they reserve the right not to do so (see above), but it is the more sensible policy.
4. ...LiveJournal also reserves the right, without limitation, to resell any portion of a user's LiveJournal back to that individual....
As a mere layperson and not a lawyer, I say, "Huh?"
5. You acknowledge that LiveJournal does not pre-screen Content, but that LiveJournal and its designees shall have the right (but not the obligation) in their sole discretion to remove or refuse to remove any Content that is available through the Service. Without limiting the foregoing, LiveJournal and its designates shall have the right, but not the obligation, to remove any content that violates the TOS or is otherwise objectionable, or that infringes or is alleged to infringe intellectual property rights.
Okay, BIG RED FLAGS here for me. First, the phrase "that violates the TOS or is otherwise objectionable" (emphasis added). Otherwise objectionable how? If it's "objectionable" but doesn't violate the TOS, that means it isn't related to spamming, harassing, stalking, breaking the law, etc. So what other ways are there to be objectionable?
Second, "that infringes or is alleged to infringe intellectual property rights" (emphasis added). Alleged? Remember, they have no obligation to review the content, so they don't have to determine whether the allegations are true if they don't want to.
More importantly, though, is how that applies to fanfic. Plenty of people allege that fanfic infringes intellectual property rights. This has never been tested in a United States court yet as far as I know, so legally, the issue is still up in the air. But all that matters is alleged infringements, and LJ can delete anyone for any reason at any time. It sounds to me like if enough people alleged that fanfic infringes on IP rights and put enough pressure on SixApart, they could mass-suspend or mass-delete every journal and community that lists "fanfic" as an interest or that comes up on a list of journals which contain fanfic and then point to the TOS.
Given FanLib's attempts to bring fanfic "closer to the talent" (and thus to the talent's lawyers), the increased focus on fanfic independently of FanLib, and the demonstration that LJ/SA sometimes goes way beyond what is necessary or what they actually intended to do in order to avoid liability, I think this little clause has taken on new importance. I don't think I'll be posting any publicly viewable fanfic anymore. LJ/SA would rather be safe than sorry. So would I.
One more thing:
XVI. Member Conduct
...You agree to NOT use the Service to:
1. Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable....
Note "tortious" (which is what fanfic would be if deemed an infringement on IP rights, if I understand correctly) and "vulgar, obscene." What is vulgar and obscene? Pictures? Personal blog entries describing real events in detail? NC-17 fanfic? Meta discussions of fictional events? Maybe they can't define it, but they know it when they see it? It's that stuff that doesn't fit in "what community [they] want to build and what [they] think is appropriate within that community"? Also, they don't say, "You agree NOT to use the Service to upload, post, or otherwise transmit any Content that is... obscene in an unlocked post accessible to minors," notice. They tell you not to upload it, period.
So this morning's apology and the reinstating of innocent (i.e., "not full of pedos") communities doesn't reassure me as much as it could.
First, from the Legal Information, a rule:
Do not spam the site or any account on the site.
This is a perfectly good rule. I have no quibbles with it.
However, I can't find a definition of "spam," and that does worry me. Hypothetically, say there is some incident which causes many people to wish to register concerns or complaints. And say that these people start typing their complaints when there are only a few pages of similar complaints, but by the time they post them, there are more like 50 pages. And say further that each person then responds to one or two other comments, or perhaps comments again to express frustration that the site has not responded in a timely manner.
Does commenting on a nearly-maxed-out post with a statement similar to thousands of others count as spam according to LiveJournal? I would like some reassurance that it does not. I'm sure they're sick of that pirate song over at HQ, and who's to say they won't just lump everything after 30 (or however many) pages together and call it spam? I sure hope they wouldn't, given how badly such mass action went for them recently, but again, I'd like some clarification in their policy as reassurance.
On to the TOS. Note: the TOS says it was last modified on April 18, 2006.
I. ACCEPTANCE OF TERMS
LiveJournal, Inc., dba LiveJournal.com, ("LiveJournal") provides the following service to you, subject to these Terms of Service ("TOS"), which may be updated periodically without prior notice.
This is fairly standard, and I don't argue with their right to change their terms. It's just better policy to notify people, yes? You wouldn't want to remind people over-much of the Ministry for Magic changing Harry Potter's hearing time without notifying him, or of Cornelius Fudge shouting, "Laws can be changed!" So. No quibbles with the actual right, just emphasizing that just because they can do something does not always mean they should.
IX. MODIFICATIONS TO SERVICE
LiveJournal reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time....
XI. TERMINATION
You agree that LiveJournal, in its sole discretion, may terminate your password, journal, or account, and remove and discard any content within the Service, for any reason, including and without limitation, the lack of use, or if LiveJournal believes that you have violated or acted inconsistently with the letter or spirit of the TOS... LiveJournal may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that LiveJournal may immediately deactivate or delete your LiveJournal journal and all related information and files.
And in some circumstances, that's okay too. But once again, it's usually better policy to give notice. For instance, when discontinuing the Service of reading groups.
XIV. Journal Content
1. ...Within the confines of international and local law, LiveJournal will generally not place a limit on the type or appropriateness of user content within journals....
GENERALLY? This looks like a big loophole to me. What sort of exceptions are we talking about here?
2. 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...
Right here they indicate that they think the better course in the case of legal but "offensive or inappropriate" material is to warn first and delete later only if necessary. Of course, they reserve the right not to do so (see above), but it is the more sensible policy.
4. ...LiveJournal also reserves the right, without limitation, to resell any portion of a user's LiveJournal back to that individual....
As a mere layperson and not a lawyer, I say, "Huh?"
5. You acknowledge that LiveJournal does not pre-screen Content, but that LiveJournal and its designees shall have the right (but not the obligation) in their sole discretion to remove or refuse to remove any Content that is available through the Service. Without limiting the foregoing, LiveJournal and its designates shall have the right, but not the obligation, to remove any content that violates the TOS or is otherwise objectionable, or that infringes or is alleged to infringe intellectual property rights.
Okay, BIG RED FLAGS here for me. First, the phrase "that violates the TOS or is otherwise objectionable" (emphasis added). Otherwise objectionable how? If it's "objectionable" but doesn't violate the TOS, that means it isn't related to spamming, harassing, stalking, breaking the law, etc. So what other ways are there to be objectionable?
Second, "that infringes or is alleged to infringe intellectual property rights" (emphasis added). Alleged? Remember, they have no obligation to review the content, so they don't have to determine whether the allegations are true if they don't want to.
More importantly, though, is how that applies to fanfic. Plenty of people allege that fanfic infringes intellectual property rights. This has never been tested in a United States court yet as far as I know, so legally, the issue is still up in the air. But all that matters is alleged infringements, and LJ can delete anyone for any reason at any time. It sounds to me like if enough people alleged that fanfic infringes on IP rights and put enough pressure on SixApart, they could mass-suspend or mass-delete every journal and community that lists "fanfic" as an interest or that comes up on a list of journals which contain fanfic and then point to the TOS.
Given FanLib's attempts to bring fanfic "closer to the talent" (and thus to the talent's lawyers), the increased focus on fanfic independently of FanLib, and the demonstration that LJ/SA sometimes goes way beyond what is necessary or what they actually intended to do in order to avoid liability, I think this little clause has taken on new importance. I don't think I'll be posting any publicly viewable fanfic anymore. LJ/SA would rather be safe than sorry. So would I.
One more thing:
XVI. Member Conduct
...You agree to NOT use the Service to:
1. Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable....
Note "tortious" (which is what fanfic would be if deemed an infringement on IP rights, if I understand correctly) and "vulgar, obscene." What is vulgar and obscene? Pictures? Personal blog entries describing real events in detail? NC-17 fanfic? Meta discussions of fictional events? Maybe they can't define it, but they know it when they see it? It's that stuff that doesn't fit in "what community [they] want to build and what [they] think is appropriate within that community"? Also, they don't say, "You agree NOT to use the Service to upload, post, or otherwise transmit any Content that is... obscene in an unlocked post accessible to minors," notice. They tell you not to upload it, period.
So this morning's apology and the reinstating of innocent (i.e., "not full of pedos") communities doesn't reassure me as much as it could.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
(no subject)
Date: 2007-05-31 09:31 pm (UTC)The legalese in the TOS of lots of sites scares me. (Actually, the fine print in user agreements often worries me, except when Apple tells me I can't operate nuclear power plants with my iPod, in which case it makes me snort drinks out of my nose.) I've wondered in the past how fanfic fits into their rules. But I'm actually less concerned about it after reading the apology. Although the vigilante group does seem to want to target fan fiction, the LJ/6A powers-that-be explicitly mentioned fan fiction and fandom as ok. It's not simply a matter of toleration through silence; it was explicit acknowledgment that this stuff is ok.
And I think that FanLib, while icky in itself, indicates that intellectual property rights might not be the issue that I've worried about. They're not just bringing the fiction to the attention of "the talent" (which is a silly way to put it... I mean, there is some serious talent in the fanfic world). FanLib is actually sponsored by media companies - HarperCollins, Simon & Schuster, Penguin, Showtime, Starz - and that tells me that the media companies are more interested in exploiting the fanfic writers than suing them. It will be interesting to see how the whole intellectual property rights business plays out, but the FanLib business suggests that the media companies may see fanfic as free promotion, not competition.
(no subject)
Date: 2007-05-31 09:48 pm (UTC)Yeah, but didn't they also say they wouldn't have ads on the site? I'm sure they're perfectly sincere, but they might change their minds. And while the media companies might be more interested in exploitation than lawsuits now, that could change too. They could allow only "licensed" fanfic on approved sites (and on approved topics) and sue everyone else, for instance.
I hope you're right, though.