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TOS: The (Con)fine(d) Print

October 19th, 2010 · 1 Comment · Business, Communication, Death and Digital Legacy

Caution: Confined Space

This photo is licensed Creative Commons Attribution-NonCommercial 2.0 Generic

My research on digital legacy issues over the last 18-months has led me to explore the area of content ownership, copyright, data portability and that dry, dusty thing that everything online has: Terms of Service.

When was the last time you read the TOS of Twitter, Gmail or Facebook (whose TOS has more words than the U.S. Constitution)?

Chances are very good that you’ve never read the legalese that is buried in the bowels of the least-frequented pages of a service. These backwaters are often filled with paragraphs in ALL CAPS, a contractual practice that predates the connotation of yelling online, yet still makes me think a lawyer is vigourously wagging a finger at me.

Let me save you some moments of your life that you’ll never get back. Here’s the gist of what most TOS contain:

You’ve just signed away the exclusive rights to your content.

You may still own the copyright. You may still own the intellectual property. But, that service where you just clicked “I Agree” upon sign up can likely do what they want with your stuff, without compensation, in perpetuity.

Will they actually use it?  Will they profit from it? Will they use it in a way that is not how you wish it to be represented?

Maybe not. But, you need to be aware that they now have the legal right to.

What does it mean for business and marketing?

Let’s talk photo sharing for a moment. Say you are a professional photographer and you use Flickr because you know you can set the level of copyright from All Rights Reserved to a very open and flexible Creative Commons license, depending on your needs and intent.

Did you know that by simply sharing a link to your photo on Twitter its content now falls under their TOS, regardless of the TOS of the service your photo resides? And that they can sub-license it?

Neither did I. Until I read this post.

This means you can no longer legally sell exclusive rights to anything you link to on Twitter.

Is Twitter Evil?

If they are, then so are thousands of other online services. I don’t believe that someone at Twitter is masterminding profiting from your linked content. It’s simply a case of services needing to cover their digital behinds. In comparison to analog printed works, where the process itself made content scarce, and therefore, containable, the flow of data is raging torrent that’s out of control.

Without this type of TOS, would Twitter be open to rights infringement simply by displaying the link to your content? What if your tweet, and its associated content on Twitpic or Flickr, were featured on CNN? Without the right to sub-license it, is it conceivable that you could sue Twitter? Possibly.

The letter of the law has not caught up with the sharing frenzy that is inherent to web 2.0. My feeling is that it will take nothing short of a revolution to change the status quo so that we control exclusive rights to our data.

Call me a cynic, but, more likely exclusivity is lost. Revolutions take passion and ignorance is bliss.

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