case study

Presenting at the 2010 Legal Faire

Posted Fri, 14/05/2010 - 08:56 by Paul

I am presenting at the 2010 Legal Faire being held in Sandton this morning. The Legal Faire is aimed at lawyers and that makes my presentation a little different. Instead of speaking to marketing, communications and general non-lawyers about social media trends and the law, I am going to be talking about how social media is challenging traditional legal paradigms. My topic is "Social media: Giving traditional legal paradigms the finger". Its probably a little ambitious on my part but it should be interesting to see what the response is. Here is an advance copy of my presentation slides if you are interested:

I am speaking today and tomorrow at 10:00. You'll need to register today if you want to attend, though.

MWeb ADSL launch illustrates why Legal should talk to Business

Posted Thu, 18/03/2010 - 17:56 by Paul

MWeb launched its new uncapped ADSL products on Thursday to both fanfare and criticism. While many commentators on Twitter cheered MWeb on for its low prices that have made uncapped ADSL possible for families which were previously saddled with low bandwidth caps and otherwise prohibitively high ADSL costs, a number of commentators started to read MWeb’s ADSL Service Terms (“the terms”) and pointed out a number of inconsistencies between the message that MWeb’s marketing team were sending out into the marketplace and what the terms themselves said. As the terms read, they watered down MWeb’s claims of an uncapped and, depending on whether you chose a home or business option, uncapped ADSL solution. The terms were described as “Draconian” and generally regarded as painting a very different picture to the marketing-speak.

While MWeb quickly became aware that the terms don’t correspond with and support the business and marketing teams’ intention for the uncapped products and quickly took steps to correct the misconceptions that arose from a cursory analysis of the terms, this launch has become a case study of both how to engage with fans and critics on the social Web as well as the necessity for terms and conditions to correspond with and support both the business and marketing imperatives for the product in question. What impressed me as a social media lawyer is how MWeb’s management quickly came out and clarified its intentions for its products, addressed the concerns raised and instructed its legal team to amend the terms to bring them into line with the products’ intended specifications. I was consulted very briefly and superficially on how best to amend the terms so I won’t discuss the terms further but MWeb’s approach to the apparent inconsistencies is admirable.

What I would like to highlight is the general importance of aligning terms and conditions with business objectives. It is trite that most people don’t actually read terms and conditions despite these documents being so important. I’ve written a number of articles that highlight why terms and conditions matter in very real terms on this site (feel free to take a gander through the archives for examples like FNB’s How Can We Help You terms, Twitter’s terms of use and why website terms and conditions matter). The simple fact is that when the proverbial poo hits the fan, the reference point is the applicable terms and conditions. These frequently understated documents are legal contracts that generally bind users to a legal framework they are far too often unaware of because they don’t take the time to read them.

The risk with the MWeb terms being inconsistent with the products’ specifications which its business and marketing teams communicated through the media and on services like Twitter is that if push comes to shove and a dispute arises while these terms remain in force, the terms themselves will be used to resolve the dispute, not the series of interviews and tweets published online. At worst, these contradictory messages may create a contractual quagmire for MWeb and harm MWeb’s reputation and undermine its efforts to sell what appears to be a great product range that will radically change how a substantial number of South Africans access the Internet. In other words, poorly drafted terms and conditions can damage or even scuttle even the best of intentions. Another thing to bear in mind is that even if your terms and conditions accurately reflect your intentions for your products or services, they must be drafted in plain language or they will fall foul of the new Consumer Protection Act. Complex legalese can be your enemy too.

The question you should perhaps ask yourself, as a service provider, is whether your terms and conditions support or undermine your business? Is your legal team on the same page as your business team or is all that legalese just getting in the way?

Image credit: Vanishing by timtom.ch licensed under a Creative Commons Attribution Non Commercial ShareAlike 2.0 license

The right to link and your freedom of expression

Posted Wed, 17/02/2010 - 17:09 by Paul

A number of companies have a curious clause in their website terms of use that prohibits anyone from linking to their websites. I wrote about one example of this a while ago when I mentioned provisions in Standard Bank's conditions of access (I'm afraid you are going to have to find the terms yourself, I am not permitted to link to them although I have quoted them in my post). Standard Bank is by no means the only company that does this and this tendency continues to both puzzle and frustrate me both as a blogger and a social media lawyer. It just doesn't make much sense to me.

I recently came across a post by Jeff Jarvis titled "The right to link" which got me thinking about this issue again, this time in the context of the freedom of expression enshrined in our Bill of Rights which states the following:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The section of the right that interests me for the purposes of this post is article 16(1)(b) which protects the freedom to "receive or impart information or ideas". A hyperlink (that typically blue link you click on in your browser which takes you to a web page or location on a web page) is a reference of sorts. Wikipedia defines a "hyperlink" as follows:

In computing, a hyperlink (or link) is a reference to a document that the reader can directly follow, or that is followed automatically. The reference points to a whole document or to a specific element within a document.

One of the definitions of a "reference" which I found on Google is the following:

A reference is something such as a number or a name that tells you where you can obtain the information you want.

So one way of thinking about a hyperlink is as a reference to information. Surely part of receiving or imparting information or ideas is making reference to them, as article 16(1)(b) seems to contemplate? Hyperlinking has become a contentious issue in the context of online news sites, particularly Rupert Murdoch's online News Corp properties. Murdoch has linked (excuse the pun) the issue to a copyright issue because the contention that Google is stealing already pressured newspaper publishers' content is a particularly emotional one. In his op-ed piece in the Wall Street Journal last year, Google's CEO, Eric Schmidt, presented a very different perspective. The whole article is worth reading but this extract stood out for me:

Google is a great source of promotion. We send online news publishers a billion clicks a month from Google News and more than three billion extra visits from our other services, such as Web Search and iGoogle. That is 100,000 opportunities a minute to win loyal readers and generate revenue—for free. In terms of copyright, another bone of contention, we only show a headline and a couple of lines from each story. If readers want to read on they have to click through to the newspaper's Web site. (The exception are stories we host through a licensing agreement with news services.) And if they wish, publishers can remove their content from our search index, or from Google News.

This brings me to a myth one of the fathers of the Internet, Tim Berners-Lee, dispelled in April 1997 on a webpage titled "Links and Law: Myths":

Myth: "A normal link is an incitement to copy the linked document in a way which infringes copyright".

This is a serious misunderstanding. The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.

When the "speech" itself is illegal, whether or not it contains hypertext links, then its illegality should not be affected by the fact that it is in electronic form.

Users and information providers and lawyers have to share this convention. If they do not, people will be frightened to make links for fear of legal implications. I received a mail message asking for "permission" to link to our site. I refused as I insisted that permission was not needed.

I added the emphasis to the first paragraph of the response to the myth because I believe that encapsulates what it means to link to something on the Internet - it is an exercise of a right to free speech. In the context of the South African Bill of Rights, this equates to the broader freedom of expression.

Jarvis expressed the point in privacy terms and this makes a lot of sense too:

Right. Linking is not a privilege that the recipient of the link should control – any more than politicians should decide who may or may not quote them. The test is not whether the creator of the link charges (Murdoch’s newspapers will charge and they link). The test is whether the thing we are linking to is public. If it is public for one it should be public for all.

...

In the end, this fight is over control. News Corp is desperately trying to maintain its control over access to and packaging and pricing of information that now flows freely from many sources. Thanks to the internet, it is losing it – in more than one sense.

Clauses in terms of use that prohibit links to otherwise publicly accessible web pages is an affront to the freedom of expression and makes about as much sense as newspaper publishers turning away "100,000 opportunities a minute to win loyal readers and generate revenue—for free", even if it is on a smaller scale. Reading the response Standard Bank sent to me and which I published in my post, it seems that News Corp isn't the only organisation obsessed with controlling the hyperlink. Any organisation which attempts to control who may or may not link to publicly accessible web pages is in the same boat.

What does this mean in real terms? Well, a clause prohibiting hyperlinking, perhaps even deep-linking, may be unconstitutional if it does, as I suggest, unjustifiably infringe the freedom of expression. That being said, I don't see a case reaching the Constitutional Court any time soon, if at all. Another question which you may ask is whether the terms of use have any significance where crawlers and other electronic agents traverse the Web automatically linking to these websites? The short answer is that in terms of the Electronic Communications and Transactions Act, an electronic agent can bring its principal into a contractual relationship with a site owner. The underlying contract would be the terms of use.

In real terms it may just mean that organisations which incorporate these linking prohibitions into their terms are starving themselves of oxygen online when they deny visitors the opportunity to link to their sites and develop a connection to the organisation or brand behind the site. As Jeff Jarvis put it in his post titled "The link economy v. the content economy":

... Let’s say that the real value in this equation is not content and information — both of which are now quickly commodified — but links, which are the new currency of media. Links can be exploited and monetized; get links and you can grab audience and show ads and make money. Content is becoming a cost burden, what you have to have to get the links, but in and of itself, content can’t draw value without an audience, without links.

Postscript: I would like to just point out that the purpose of this post was not to single Standard Bank out as a fundamental rights violator. I have previously written about its terms of use so it was a convenient example to use in this story.

Changing perceptions of the social Web from a legal perspective

Posted Fri, 27/11/2009 - 08:29 by Paul

I was invited to speak at the IT Governance Forum/Conference yesterday in Rosebank. I spoke about social media and some of the legal challenges social media use introduces. I have this nagging feeling that many people don't take social media seriously enough to recognise that there are real legal challenges.

I made the point that social media is perhaps seen as a little warm and fuzzy and without all that much substance. There is a lot of emphasis on sharing and not all that much on the very real impact social media can have on a business' bottom line.

Many of the attendees at the event weren't familiar with Twitter, for example, and while Twitter might be seen as somewhat superficial, it can have a profound impact on a business if the right people spread bad reviews (or good, for that matter) to the right connections.

My slides are below if you are interested in the topics I talked about:

Social media: Legal and business challenges

View more presentations from Paul Jacobson.

Is Google serious about your privacy?

Posted Thu, 19/11/2009 - 11:07 by Paul

Google is doing some very interesting work in the privacy space. I have already talked about the Google Dashboard which gives users a detailed and, perhaps, frightening overview of all the personal information Google has collected about its users. One important realisation which users should take from the Dashboard is one which I have referred to in the past, namely that privacy as secrecy is virtually non-existant if you engage with the social Web in much detail. The only real variable is the degree to which your personal information is shared online.

I came across a set of new features in Google's Latitude (its location-based service that ties in with Google Maps) which present an interesting perspective on how Google is dealing with privacy issues, particularly when it comes to privacy-sensitive services like Latitude. Google Latitude has a number of applications you can add to your Latitude service which both enhance your location-based experience and create more opportunities for your personal information to be exposed.

One of the reasons why location information is so sensitive is that location-based services like Google Latitude track your movements revealing not only information about where you work and live; where your children go to school as well as where you shop and the other places you frequent. Particularly sensitive Latitude applications like the Location History are not publicly available (although Location Alerts, the Public Location Badge and Google Talk Location Status do share your current location to a degree based on your Latitude location sharing preferences).

Of course you can disable Latitude on your device but you may leave it active for a variety of reasons including the ability to keep family members apprised of your location; keeping track of friends and so on. Given that you could build up quite a detailed location-based history it is important to have meaningful control over that history and it appears that Google has developed tools to help you do just that.

Google's Location History privacy tools give you the ability to decide whether to track your location history or not. If you are tracking your location history you can delete individual items, whole sections of your history or all of it.

You can also disable any of the other Latitude applications on the website too (they are set to "disabled" by default). In addition to this you can also elect whether to run Latitude when you are using Google Maps and thereby effectively prevent all Latitude applications from operating.

While Latitude is a useful service and users do appear to have control over whether to use the service and how much of their location-based personal information they share with Google and their contacts, this service is not offered for purely altruistic reasons. As with other Google services like Search and Gmail, ads presented on those sites are customised based on keywords on the page (automatic filters pick up text in your emails and present ads based on those keywords too). In fact, virtually all of Google's free services are geared to keep you using the services and clicking on more relevant ads.

At the same time its services are incredibly useful to its users, vital even, even as they are replaceable if push came to shove. Enter the Data Liberation Front: a pseudo political/public service/advocacy Google initiative which has an admirable goal:

The Data Liberation Front is an engineering team at Google whose singular goal is to make it easier for users to move their data in and out of Google products. We do this because we believe that you should be able to export any data that you create in (or import into) a product. We help and consult other engineering teams within Google on how to "liberate" their products.

Data Liberation shows users how to migrate to competing services. It is a tool Google provides its users with to leave Google. The challenge is that there aren't that many competing services of comparable quality or flexibility and few competitors are taking similar steps to help you safeguard your personal information or retain the ability to keep your data portable.

If you are cynical you may be thinking that this is just elaborate PR speak designed to keep Google's users quiet. It is tempting to wonder what the catch is and what is going on behind the scenes. Eric Schmidt, Google's CEO, has said that the foundation of Google's relationship with its users is trust and Google is also renowned for its motto "Don't Be Evil" which has apparently shaped its culture and its decisions about how it does business. I still wonder how deep this sentiment runs and Google's apparent missteps (such as its questionable Books Settlement due to be assessed by a US court in early 2010) do seem to contradict its seemingly pure motives and fuel its critics.

Just how sincere Google is about protecting its users' rights to informational self-determination and other aspects of their privacy remains to be seen in time but what is clear is that Google is making a far bigger and overt effort to place control over users' personal information in users' hands. The complex controls in Google Latitude illustrates this, as does the Dashboard itself.

This license applies throughout the known universe

Posted Tue, 17/11/2009 - 10:03 by Paul

I was just listening to an old episode of This Week in Law (I recommend this podcast if you are interested in legal trends online even though there is a strong US law bias) and the panel discussed a tendency to incorporate seemingly absurd license provisions in terms of use.

One example they cited is the terms of use on the Star Wars website which includes this gem:

By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants, Lucas the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed, for the full term of any copyright, trademark or patent that may exist in such material for any purpose that Lucas chooses, whether internal, public, commercial, or otherwise, without any compensation, credit or notice to the sender whatsoever. (emphasis added)

This sort of language both demonstrates the absurd lengths some lawyers will go to control how, when and where content may be used as, possibly, a degree of extreme foresight. If humans acquire the technology to venture beyond our home planet before the copyright term applicable to the submissions these sorts of terms apply to, one question is whether the licenses granted will continue to apply outside the scope of the usual geographical specifications more commonly used? Hypothetically this could be a challenge which terms of use with universal application could address although I have to wonder if these license terms sufficiently take into account the relativistic effect of galactic space travel or the implications of travelling between parallel universes?

(Note: as witty as my comments may seem, they were inspired by Evan Brown's similar comments on TWIL 36)

The anatomy of a website terms of use

Posted Mon, 05/10/2009 - 21:50 by Paul

I've written about various aspects of terms and conditions for a little while now and I thought it would be helpful to present an overview of a website terms of use. This is hardly the only way to frame a website terms of use but it is a way that makes sense to me at least.

It is important to bear in mind that a fair amount of thought and planning should go into a website terms of use, especially where the website takes advantage of complex elements like 3rd party authentication mechanisms and so on. Clients often ask me for a simple 1 page terms of use at the beginning of a project. The difficulty with that is that a 1 page terms of use generally won't cover the basics, let alone afford my clients with the level of protection they would be comfortable with.

My preference for a website terms of use is to rather focus on accessibility at the expense of brevity rather than brevity at the expense of effectiveness. If your terms aren't as comprehensive as they should be, you're probably wasting your money on what you are getting because the resulting terms will have holes big enough to drive a lawsuit through.

RISA tries to bully ISPs with bogus take down notices

Posted Fri, 24/07/2009 - 15:50 by Paul

I heard a report from an Internet Service Provider ("ISP") that the Recording Industry of South Africa ("RISA") has adopted a tactic that smacks of its reviled cousin in the United States, the RIAA. RISA has hand delivered notices styled as take down notices in terms of the Electronic Communications and Transactions Act demanding that ISPs block access to a website in Russia which is presumably suspected of being involved in music piracy.

I have received a copy of one of these take down notices. I have redacted the ISPs details in case RISA would be inclined to take a special interest in them. I have been given permission to publish this notice by the ISP concerned, though. Essentially RISA is accusing the ISPs of committing copyright infringement or causing their subscribers to access infringing material.

~~I hope to receive a copy of one of these notices shortly but h~~Having spoken to one ISP and to the Internet Service Providers' Association ("ISPA"), it seems that RISA has either received bad advice from its lawyers or is just taking a chance and filing these take down notices with this demand. The notice appears to be in terms of chapter 11 of the Act which basically provides as follows:

The idea behind this chapter is to provide ISPs with protection from liability if there is activity across their networks that infringes a 3rd party's rights. The classic case is where an ISP hosts a website with pirated content and it gives the 3rd party an easy way to have that infringing content removed at no or little risk to the ISP. What RISA is doing appears to be an abuse of that mechanism and a play on ISPs' fear of being sued because their customers may be accessing sites that facilitate piracy. I understand that ISPA has been in contact with its members and regards these notices as both ill-advised and, at the same time, invalid take down notices in terms of this chapter of the Act. ISPs should get in touch with ISPA if they have any queries but the consensus seems to be that there is no need for ISPs to comply with this demand.

It is a pity that RISA is adopting the RIAA's intimidatory tactics here in South Africa rather than working more constructively with local ISPs to address music piracy. All RISA is doing is alienating the very organisations it must rely on for any broad-based attack on music piracy in South Africa.

No links please, we're Standard Bank!

Posted Tue, 07/07/2009 - 10:59 by Paul

I was taking a look at various website terms of use a few days ago as part of my process of keeping up to date on what goes into these documents in different contexts and I came across this section of Standard Bank's Conditions of Access (apologies, I can't include the link to the page for reasons which will soon become apparent) which intrigued me:

Nobody may establish a hyperlink, frame, metatag or similar reference, whether electronically or otherwise (collectively referred to as linking), to this site or any subsidiary pages before receiving our prior written approval, which may be withheld or granted subject to the conditions we specify from time to time.

An application for linking must be submitted to webmaster@standardbank.co.za. Once received we will do our best to respond and enter into further discussions with you. If you don't get a written response from us within five business days, consider your request as having been rejected.

Breach of these conditions entitles us to take legal action without prior notice to you and you agree to reimburse the costs associated with such legal action to us on an attorney and own client scale.

This didn't really make a lot of sense to me so I posted the first paragraph on my Posterous blog (which automatically re-posted to Twitter - I have since removed the link to the Standard Bank page). My resulting tweet was re-tweeted a couple times by people who also thought this was a little silly (the tweets also appear in FriendFeed).

I received an email this morning from Standard Bank online reputation management agency, Brandsh (an excellent company by the way), with the following feedback from Standard Bank:

We are very happy to have permanent links to our site provided that the website owner signs a linking agreement with us. This is for a few reasons…

We need to make sure that the information they are linking to is relevant to their website and that they have a reputable website (we are currently having a problem with a gambling website that has linked to us which is not very reputable… not good for our customers to be misled like that)

That the information on our site that they will be linking to is at least up to date

That the information they are linking to is not syndicated or licensed and that, by sharing it, we are not breaking any contracts/laws (we can’t risk that kind of bad press)

We need to have a record of who is linking to us so if we decide to move content we can tell them so their links don’t break (this just causes frustration and a bad experience of the “linkers” and our brand)

We also like to ensure that our logo is applied correctly. It’s just part of good brand management really

We are actually very happy to have as many other sites link to our as possible (it’s great for SEO) but we just try to manage things properly… hence the written consent…

While I appreciate the need to protect a brand, this approach assumes that it is preferable to prevent people from linking if there is a risk they will do so incorrectly and that the bank has complete control over its brand. I don't believe that the first assumption is correct, generally speaking, although I am not a marketer so I'll leave that determination to the professionals. As for the second assumption, there are numerous examples of how companies are no longer in complete control of their brand and their customers or critics have the power to boost or trash those brands. The fact that my tweet merited a response is an indication of the potential value of that sort of feedback and my tweet was only re-tweeted a few times.

As a Standard Bank customer myself I have complimented and criticised the bank a few times on Twitter and elsewhere. My intention is to provide some form of feedback in the hope that problematic service could be improved and excellent service recognised and evangelised. Not being able to link to the bank is almost like not being allowed to mention the bank by name. I probably won't link to the site any further but I will still talk about the bank when I have something to say about it. So will the bank's other customers and critics. Even if those people don't link to the bank or use its logo, they retain the ability to impact on the bank's reputation. This is why the bank has appointed Brandsh to monitor what is being said about it. If anything, being told that you need to sign a linking agreement to be able to link to the bank dissuades people from linking in the first place and, worse still, simply not talking about the bank as much as they would have. I've been banking with Standard Bank for about a decade now and this leaves a bad taste in my mouth.

Bringing this back to a semblance of a legal discussion, these sorts of restrictions are typical of the disconnect between conventional legal protectionist thinking and the sort of thinking we should see more of when building legal infrastructures for the Web. Lawyers really need to understand the groundswell when they draft for the Web because the Web requires a different approach that takes customers into account and recognises that they wield a fair amount of influence over the brand.

I criticised FNB for its terms on its How Can We Help You site a while ago. I had an opportunity to chat to FNB's people about the terms at the FNB Connect product launch and they showed me a revised set of terms which I felt were more comprehensive but just not very user friendly. They have since done a much better job formatting the terms so they are more readable and intelligible to the average person who reads them (I wasn't involved in this process, I just gave some feedback). This is important because you have to consider who is accessing your site and how important it is that they understand what they are reading. FNB's response is also a great example of how to respond to feedback and make great improvements (I'm almost kicking myself for moving my business account away from FNB to Standard Bank a while ago).

Bottom line here is that while there isn't any really wrong with Standard Bank's linking restrictions, legally speaking, it just isn't appropriate for the social Web where people are accustomed to talking about the brands they love and dislike.

Case study: Zoopy's terms of use

Posted Thu, 05/03/2009 - 11:39 by Paul

Ordinarily attorneys are not permitted to discuss their work in much detail because it violates legal professional privilege which binds them. This privilege is the client's to enforce or waive. Zoopy has consented to me publishing this case study.

Zoopy describes itself as "an online and mobile social media community, where users upload, share and interact with videos, photos, audio and notes". I was briefed to update Zoopy's terms of use. Some of Zoopy's main concerns were to have the terms of use prepared in plain language and to introduce a series of licenses which did not interfere with users' ownership of their content but also only went as far as was necessary in order to provide the service to its users.

Lawyers frequently approach this sort of project with a document precedent which they modify, sometimes simply by changing the names and specific detail. Revamping Zoopy's terms of use required a different approach. Although my existing precedent represents a couple years' improvements and had some clauses which were useful, revamping Zoopy's terms of use required a review of current best practices on the Web today and using the result of that review to reconceptualise what Zoopy's terms of use should look like. It also required revisiting how the terms of use should be structured in order to improve readability and accessibility generally.

The review process took about 2 to 3 days to complete and involved reading terms of use that govern services like Google's services generally, YouTube, Blip.tv (it also incorporates Creative Commons licensing), MySpace, Facebook and LinkedIn (examples of what not to include in a terms of use), Vimeo and Virb. It is interesting to see how these different services structure their terms of use and the licenses they use in particular. If I were to plot their terms of use on a continuum ranging from least onerous terms of use to most onerous terms of use, Facebook's current and previous terms of use and LinkedIn's terms of use are the most onerous; Google's universal terms perhaps represent a good starting point for an acceptable terms of use and Virb's and MySpace's terms of use are examples, at least in part, of what is desirable in a terms of use from a user's perspective. The other services tend to be less onerous. When I consider whether a terms of use is onerous I look at whether the license contained in the terms of use -

is perpetual (whether it survives termination of your account or removal of your content);
allows for the service to make commercial use of your content;
sub-licenses your content (potentially to parties you don't know and may not want to have any rights to your content);
tries to include content not specifically uploaded to the service (a good example here is Facebook's retracted terms of use and, to an extent, its current terms); and
is generally broader than it needs to be in order to provide the service to its users (the concern here being that overly broad licenses represent an unreasonable and unnecessary exercise of rights which should remain the user's to exercise and control).

Once the review was done and I identified some of the best practices in these various terms of use I outlined and drafted Zoopy's new terms of use. The new terms of use include a number of features which users will hopefully appreciate. For starters the license itself only goes as far as it needs to go in order to continue to provide Zoopy's service to its users. The license itself explains some of its features because language like the following tends to confuse users:

By posting any content on or through the services, you grant to Zoopy a non-exclusive, fully-paid, royalty free, non-transferrable and worldwide license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, distribute such content solely on or through the services including without limitation, distributing part or all of the services or content in any media formats and through any media channels and make use of the content in Zoopy’s advertising campaigns, except for content you have marked “private” which will not be distributed outside the Website.

So what we did is we incorporated an explanation of these various terms ("non-exclusive, fully-paid, royalty free, non-transferrable and worldwide") below the actual license so you know what you agree to when you use the service. Generally speaking these terms of use are written in very plain language so users can read and understand what the terms mean. This is obviously important because the terms of use govern your use of Zoopy's services and you agree to them by simply using the service. This mechanism isn't unusual and is necessary in order to provide the service. The logistics involved in obtaining every user's and visitor's consent to the terms of use before providing the service would make it impossible to actually provide a service. This is why it is also important to actually read the terms before you create your account and take the time to read them when you visit the site.

A debate about Zoopy's invitation facility arose as the terms of use were being finalised. I worked with Jason Elk to incorporate provision for the invitation facility into the terms of use to address users' concerns about potentially receiving multiple invitations across multiple services that the facility connects to. Their solution is pretty interesting. People who receive an invitation through, for example, Facebook won't receive any further invitations through that service. This should cut down on the number of messages people receive from their contacts and friends and strike a balance between enabling users to invite their contacts and friends to join Zoopy and protecting people from being inundated with these invitations.

This debate highlighted an important issue which we attempted to convey in the terms of use, namely that users also bear a responsibility not to send invitations to people who they don't believe would be receptive to those invitations. This applies to all services with this sort of facility and it is an important responsibility. Services, like Zoopy, and their users should take responsibility for their communications with other people and do their part to reduce the amount of unsolicited mail being sent across the Internet.

It was also important to Zoopy that the new terms of use be introduced to its users so I sat down with Klaus at Zoopy's Joburg office and recorded the video below explaining some of the aspects of the terms of use and the general approach.

Although terms of use are generally ignored or viewed with either suspicion or degrees of confusion, they remain critical documents. This is evident in the recent Facebook terms of use controversy and we will see this issue pop up again and again in the future. Being able to present a more reader friendly terms of use is important, as is being able to present them to users in a constructive manner. I believe Zoopy has achieved that and you need not look further than the comments on Jason's post introducing the terms of use.

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