The Pulse RSS reader caused quite a stir when Steve Jobs demonstrated it during his recent WWDC keynote speech. He talked briefly about Pulse's merits and as used it as an example of the sorts of applications which are available for the iPad in the iTunes App Store. He probably didn't count on the New York Times' lawyers taking issue with the Times' feed being one of the feeds Pulse ships with by default, particularly considering that Pulse is a paid application. NYT's lawyers wrote to Apple requesting that Pulse be pulled from the App Store alleging as follows:
The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use.
I note that the app is delivered with the NYTimes.com RSS feed preloaded, which is prominently featured in the screen shots used to sell the app on iTunes.
2.1 The contents of the NYTimes.com sites are intended for your personal, noncommercial use. All materials published on NYTimes.com (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips, also known as the "Content") are protected by copyright, and owned or controlled by The New York Times Company, NYTimes.com, or the party credited as the provider of the Content. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Service.
2.2 The Service and its Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in Section 2.3 of these Terms of Service), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service (including software) in whole or in part.
2.3 You may download or copy the Content and other downloadable items displayed on the Service for personal use only, provided that you maintain all copyright and other notices contained therein. Copying or storing of any Content for other than personal use is expressly prohibited without prior written permission from The New York Times Rights and Permissions Department, or the copyright holder identified in the copyright notice contained in the Content.
The terms of service clearly restrict use of NYT content to "personal, noncommercial" use and, as the extract from NYT's lawyer above indicates, NYT was of the view that including the NYT's feed in the Pulse application was a commercial use of that content, apparently because the NYT believes its content was used to sell Pulse. NYT also objected to Pulse "framing" NYT and Boston Globe content in the application, presumably a reference to how these websites can be displayed in Pulse like a Web browser. In fact, Pulse incorporates a Web browser to display actual Web pages rather than just the published RSS or Atom feeds.
I have been listening to the debate on a recent episode of This Week in Law about the merits of NYT's lawyer's contention that Pulse infringed NYT's terms of service and made use of NYT's and its affiliate's content for uses that were not personal and noncommercial. Evan Brown expressed a view early on in the podcast that seemed to mirror the view held by NYT's lawyer; namely that the terms of service prohibit commercial use of NYT's content and Pulse's use of the content was commercial, therefore a violation of the content license the NYT grants to its readers. This, in turn, justified NYT's call for the application to be pulled. I initially agreed with his view and disagreed with TWIL host Denise Howell's arguments that aggregators like Pulse should be regarded as utilities and effectively exempt from any argument that they infringe copyright simply because they display content feeds that the content owner publishes (I believe that summarizes her argument fairly).
I do see Denise's point and agree that regarding a paid RSS reader as infringing copyright because it displays a feed which may have a noncommercial restriction is as absurd as claiming Google; Mozilla; Apple, Opera or any Web browser developer is liable for copyright infringement because their browsers display content with similar restrictions. On the other hand, I don't believe that this is what the real issue is. The real issue in this case is whether a paid RSS reader like Pulse is making commercial use of content either by displaying it at all or if it displays the restricted content in its marketing material? The term "noncommercial" has proven to be a particularly tough one to pin down, so much so that Creative Commons commissioned a study on what people generally understand by this term.
On the one hand, Pulse is a paid application and a user's purchasing decision may be influenced by the appearance of the NYT's content in the application when it is demonstrated. What if the NYT's content was not included in the application's demonstrations? What if a user purchased the application and subsequently added the NYT's feed to Pulse and consumed that content on a personal and noncommercial basis? Would this use still be tainted by the price charged to use Pulse? NYT's lawyers would seem to argue this is the case but this argument is increasingly absurd when you consider that the argument necessarily means that Google, Mozilla, Apple and Co. must similarly be on the hook for copyright infringement if people view the NYT website in their browsers.
The central question should be whether the use of the content is permitted by the relevant content provider's terms of service or content license and not whether the technology used to access that content permits that access, as I understand Howell's argument to suggest, in part. Assuming I understood this to be one of Howell's points correctly, the logical implication of her further argument is that it should be legal to pirate and share pirated content because the means exist to make this possible. Rather, the argument should focus on the relevant content license which may have been applied to the content (or, in the absence of a license, the restrictions of copyright law itself).
I see selling content as a clear case of commercial use. On the other hand, enabling a person to view content in a freely available Web browser shouldn't be regarded as commercial use of the content. The fact that Pulse is a paid application shouldn't, in itself, make displaying the NYT's content (either the website itself or its published feeds) commercial but perhaps selling the application with an implication of NYT's endorsement or, worse, that NYT content is part of the deal could be commercial use of NYT's content. The answer to this question isn't clear but the closer Pulse's developer gets to actually making profit from NYT's content directly, the clearer it is that his use of NYT's content is commercial. The developer is probably best served removing NYT content from the application as it ships and to refrain from referring to it or displaying it in the application in his marketing material.
What this furore highlights, though, is that some publishers publish their content under restrictive content licenses which are typically detailed in their terms and conditions. I have advised a couple clients who has assumed that if content is published through a feed they should be free to use that content however they please but this is simply not the case. Irrespective of the technology used to publish the content, content licenses still apply to that content and use of the content should be moderated accordingly.
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:
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.
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)
I was interviewed by the Advertising Standards Authority on Radio Today a couple weeks ago about the Web and digital media law. It was a pretty broad interview and I enjoyed being on the show. If you are interested in the Advertising Standards Authority, here is a brief profile:
The Advertising Standards Authority of South Africa (also known as the ASA) is an independent body set up and paid for by the marketing communication industry to ensure that its system of self-regulation works in the public interest. The ASA has a president independent from the industry and governed by a Board.
You can find out more about the ASA on its website. I would like to thank Corne Koch, the ASA's communications manager for inviting me to be on the show.
Ok, here is the audio from the interview. I have edited out two music tracks which were played during the show, mainly for copyright reasons:
I mentioned on Facebook that I had watched a segment on BBC Click about BitTorrents the other day. The segment was focussed on BitTorrent downloads and about how some BitTorrent site operators are working on legitimizing their services. While there is no doubt that there is a considerable amount of piracy being conducted using BitTorrent sites, the segment got me thinking again about the availability of music online, particularly here in South Africa. I emphasise South Africa because some of the more privileged and more developed markets have the benefit of Apple's iTunes Store and some even have access to Amazon's music download store too.
Here in South Africa there are very few satisfactory options available. Perhaps the best of the bunch is the Nokia Music Store which gives Windows users access to a fairly wide range of music available for download. The music sold on the Nokia Music Store is restricted by digital rights management software which limits the platforms that can be used to access it and the flexibility users have with that music. Otherwise it is probably the best option for South Africans looking for both popular and more obscure music.
There are other options that are accessible to South Africans both in South Africa and internationally and their versatility and accessible ranges vary. One source of music (and other media, for that matter) which is probably as diverse as any online music store is the peer to peer network of BitTorrent users who share their media which they may have ripped from their CD and DVD collections of which they may have obtained from other users and re-share. This content is frequently infringing on someone's intellectual property rights (usually copyright) and is illegal. Using BitTorrent tracker websites like the now infamous The Pirate Bay anyone using a freely available BitTorrent client can download a range of content including these illicit copies of music, movies and TV series that someone, somewhere has made a digital copy of and "seeded" onto the network. Popular content can spread virally.
This understandably has content owners deeply concerned. This network isn't dependent on central hubs as sources of this illegal content. While there are Bittorrent trackers which are instrumental in directing users to where all the content is, the content itself is on the users' computers and servers and is shared between them. It is a fairly robust system which rewards popular content choices with fast download speeds and a number of sources of varying quality and reliability.
Content owners' concerns include the potential loss of revenue from what would otherwise be legitimate sales from authorised retail outlets; loss of income for content creators who rely on royalties for their livelihood and the simple fact of content piracy and flagrant disregard of music licensing restrictions. The arguments against BitTorrent are not always persuasive but there is some merit to many of them. One of the challenges facing the music industry (as well as other content-based industries) is that their customers are increasingly resisting traditional sales channels and are looking for more convenient alternatives, regardless of the legalities. I believe that the majority of these people seeking alternatives are not seeking to avoid paying for content they consume (although there are clearly many people who have no compunction pirating content and not paying) but they simply lack the options that give them the flexibility and convenience they desire.
This, to me at least, is indicative of an industry that is slow to change and address its customers' needs. BitTorrent Inc (the company set up to oversee the BitTorrent technology - if I understand it correctly) has been working with content owners to deliver their content using BitTorrent legitimately. The idea is to harness BitTorrent's strengths to open up powerful new distribution channels for content owners and, at the same time, give users more flexible access to quality content. This seems to be a growing trend but we still don't see broader BitTorrent adoption by to wider content owner ecosystem. BitTorrent Inc has demonstrated a capability to adapt this technology for a commercial use and yet we are still faced with restrictions like DRM, regional licences and content simply not being made available.
Just like the data routes around obstructions and breakdowns in the Internet itself, users will find a way around the restrictions and hurdles content owners put up. One of the ways they circumvent these limitations is by using BitTorrent to freely download the content they would otherwise be prepared to pay for, were they given the opportunity to do so using a framework that better suited their needs. Another way users get around these limitations is creating illegal iTunes Store accounts and disguising their locations to access content restricted to specific regions.
Rather than seeing this as a terrifying and growing piracy trend, content owners should take their cue from these trends and adapt their business models to take advantage of these technologies. There is an opportunity here to reach out to substantial numbers of potential customers who are yearning for a legitimate and convenient option. Until then efforts to stop this sort of illegal file sharing will yield very limited results and possibly alienate even more users. In the end the industry will suffer. It is a numbers game at this point.
I was asked to speak at the Marketing Legislation Conference at The Rosebank yesterday by Knowledge Resources. My topic was "Marketing on the social Web - legal considerations for digital marketers" and I thought I would approach it a little differently to the usual legal presentations you tend to see at conferences. Actually, all my presentations are a little different from the usual legal presentations. I spoke about the social Web and the challenges it presents to marketers. I am fairly heavily influenced in how I think about the social Web by the Cluetrain Manifesto and, more recently, Marketing in the Groundswell.
I was hoping to record my talk and make it available here for you to listen to but my recording setup still needs a little work. I have uploaded my presentation to Slideshare which you can take a look at here:
You'll notice that one of the slides is blank. I embedded this video titled "Building on the Past" which is a great introduction to Creative Commons licensing and to the social media mindset itself:
By far one of the biggest challenges that lawyers certainly face is that the social media mindset is totally foreign to them and looks a lot like hippy piracy thinking. There is this notion that if something is online it can be used, remixed and re-used but I think that comes more out of this underlying "sharing is caring" ethos, and not so much out of a specific desire to infringe anyone's rights. This scares lawyers who tend to be conservative and averse to this sort of open sharing, especially when it comes to digital media.
This isn't to say that the law is meaningless online. Quite the contrary, the law provides an important and essential framework for the Web and digital media generally. What I do believe is that the traditional rules need to be adapted to social media because, ultimately, people who are social media users will prevail and will find a way to do what they want to do. The law should be used to facilitate the social Web while at the same time shaping its evolution with due respect to intellectual property rights, reputation and privacy concerns. This is all possible but it begins with an understanding of what motivates people on the social Web and you don't get that from law school.
If you are interested in the program for yesterday's event, here it is:
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 hHaving 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.
I lost my faith in Facebook not too long ago when news broke about its extremely onerous terms of use (which it subsequently reversed after a public uproar). I cautioned businesses not to use Facebook because of the risk of having their content appropriated and used in ways they may not have contemplated previously. Not only did Facebook revert to its previous terms of use (which are mildly better than the objectionable set), it announced an innovative approach to the next general legal infrastructure for the service. Mark Zuckerberg posted an update to the Facebook blog which included the following:
Our main goal at Facebook is to help make the world more open and transparent. We believe that if we want to lead the world in this direction, then we must set an example by running our service in this way.
We sat down to work on documents that could be the foundation of this and we came to an interesting realization—that the conventional business practices around a Terms of Use document are just too restrictive to achieve these goals. We decided we needed to do things differently and so we're going to develop new policies that will govern our system from the ground up in an open and transparent way.
Beginning today, we are giving you a greater opportunity to voice your opinion over how Facebook is governed. We're starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we'll consider—or the reason we won't consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We've created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you'll also have the ability to vote for or against proposed changes.
This post reinforced what I was hearing from people who have been working with Facebook to help open Facebook up a little more and help it achieve its stated intention of being more transparent. It also reinforced a view that people like John McCrea (from Plaxo) expressed to me in a conversation about the terms of use controversy on Facebook, namely that the legal framework the terms of use created did not reflect Facebook's ethos. I soon found similarperspectives along these lines elsewhere and began to think a little differently about Facebook.
In keeping with my original criticisms of Facebook's terms of use I turned to what Facebook was doing to address criticisms about its governance structure. As Zuckerberg's post pointed out, Facebook initiated what it calls a "town hall" process of presenting a new framework in the form of its Facebook Principles and its Statement of Rights and Responsibilities to its users and inviting users to give feedback on this new framework.
This model is pretty innovative for a Web service's legal framework and it is analogous to a constitutional framework used by many nation states. That probably shouldn't be surprising considering that Facebook's 200+ million users would make Facebook roughly the 6th biggest country if it was a country. The usual model for developing a site's terms of service is to brief an attorney or legal person (preferably) to draw up the terms of use and implement them. If you have the right lawyer you will have a terms of use that more accurately reflect your company's ethos. If not, you will have the usual legal terms that users have learned to ignore.
Facebook has taken the whole process a couple steps further and have not only invited users' feedback and opinions on the proposed framework (each group has in excess of 10 500 users who have taken an interest in the process) during the course of March 2009 but it is addressing a concern that came up during a discussion I had with Susan Cartier Liebel when the controversy arose. At the time the typical response to the controversy, particularly when Zuckerberg initially responded by saying that Facebook respected users' ownership rights over their content (this argument was a response to claims that Facebook was seeking to take ownership of users' content - this was a misunderstanding of the terms of use and missed an important point), was that Facebook didn't mean what the terms said and so the terms shouldn't be that important. Unfortunately the terms are the only terms that matter if there is a dispute so that argument had to fail. Anyway, the proposed new framework addresses that issue.
Facebook's proposed new governance framework will introduce not only an improved set of terms in the form of Facebook's Statement of Rights and Responsibilities but it also introduces an interpretive aid when the Statement itself is vague or apparently out of touch with Facebook's declared intentions. By establishing the Facebook Principles as "the foundation for how we define the rights and responsibilities of Facebook and its community", we begin to see a governance framework that is analogous to a constitution that guides the interpretation and development of a body of laws that govern a nation.
While the proposed framework is hardly perfect, it represents a significant improvement on the retracted terms as well as the current terms of use. I recently wrote about a brief comparison between various terms of use including Google's (which I regard as a good starting point) and the proposed framework was much better in many respects.
So where this left me was with a sense that Facebook isn't quite as evil as I believed it to be (at least the people behind the scenes are working to be more open and transparent). There is still room for improvement in how Facebook operates and what its governance structure enables. We are yet to see its current terms replaced with a version of the proposed framework (the two groups closed for comments on 29 March and the Facebook team is reviewing the comments posted with a view to coming up with a modified set which takes users' feedback into account. I do believe that we will see an improved governance framework soon enough and that is good news for individual and business users alike.
As for me, I have been using Facebook a lot more lately and I believe that my Facebook page can serve as a great way for Facebook users and fans of what I do and write about to engage with me and with each other about these and other issues in addition to the opportunities my site offers for interaction. Hopefully Facebook has learned its lessons and is on the better path. It has made its mistakes in the past and we will probably see a few more but my hope is that it responds quickly and decisively to users' feedback and creates a more open and transparent platform for all its users.
Do you have any thoughts about this process? Have your opinions about Facebook changed after its disastrous terms of use? If they have, how did they change?
Update: There is a new post on the Facebook blog. Facebook is going to present different versions of the proposed terms of use and will give users an opportunity to vote on which version they prefer. This is both unprecedented and very exciting:
On April 16, we'll be posting revised versions of the documents based on the feedback we've received. We'll also be sharing a written response to the main concerns people have expressed. This will explain in clear language why we did — or did not — make certain changes. This is similar to how U.S. federal agencies create regulations.
At the same time, we'll be asking people to vote on the new revised documents. Voting will begin on April 16 and end on April 23. It will be done through an application developed on Facebook Platform by Wildfire, and the vote tabulation will be audited by Ernst & Young to ensure that the results are accurate.
There is a marked disconnect between creative agencies and lawyers which could spell doom for agencies’ clients. To put it plainly, creative agencies develop and implement innovative campaigns without taking into account the legal considerations and, in the process, place their clients at unnecessary risk.
While this sounds fairly alarmist, recent events have revealed just how risky marketing campaigns can be in the absence of adequate and appropriate legal guidance. You are probably aware of the controversy over a version of Facebook’s terms of use recently. Without going into the matter in great detail (I published a more detailed post here), Facebook published a new terms of use which bound all Facebook users, personal and business alike, by virtue of their continued use of the service. The revised terms of use included a broader license than the one that appeared previously and, unlike the previous version, the overly broad license persisted even after the users account was terminated.
One of the reasons the license was too broad was that Facebook sought to exercise an “irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license” over not just content uploaded to its service directly but also to any content Facebook users linked to from within Facebook or using a “Share” button or link on external websites to share content from those websites in Facebook. This formulation presented a number of difficulties ranging from Facebook’s efforts to take a license over content the person sharing the content had no right to give (typical in the case of third party content shared on Facebook) to a total disregard for the license (or lack thereof) applied to the content in the first place before it entered Facebook’s ecosystem. The irrevocable and perpetual nature of the license only aggravated the matter.
What does this mean for businesses? Well, for starters creative agencies that develop marketing social media marketing campaigns frequently point out Facebook’s tremendous potential as a platform for part or the whole of the campaign. They are not wrong. Facebook can provide access to a receptive and engaged audience for a business’ brand but how a business makes use of Facebook should be carefully planned. Often a Facebook campaign involves making content or services available through an advertisement on the site or a Facebook Page which fans would join and (hopefully) use to engage more directly with the brand and the business behind it. It is a very appealing opportunity on paper but what agencies rarely include in their planning is provision for the licensing implications for their clients’ content posted to the site.
Not only does Facebook take a particularly broad license over a business’ content posted to the site (the license permits commercial use of the content in addition to what I have quoted above) but provisions dealing with shared content potentially bring a business’ content within the license’s scope where the a user shares content on an external website with other users on Facebook. An example of this is where a “fan” links to the company’s website from its Facebook Page, finds an interesting blog post or video and, using a “Share” link or bookmarklet (usually through a web browser), shares that content with other Facebook users. At first blush this is precisely what a Facebook campaign may be intended to achieve. On a closer look it becomes apparent that by sharing that content with other Facebook users, that shared content becomes subject to Facebook’s license, irrespective of the company’s wishes. If the company publishes a “Share” link on its own website with the intention that users share its content on Facebook then it is similarly bound to license its content to Facebook under the same license.
It is important to note that with all this attention on Facebook’s terms of use, it isn’t just Facebook that has terms of use with these implications. Facebook, itself, reverted back to a previous set of terms of use after a public outcry online but its current terms of use don’t address all the concerns about the previous set, particularly the licensing concerns. A number of other platforms have similar broad licenses but factors which distinguish some of those services from Facebook include a user’s ability to remove content from the service and revoke the license in the process as well as a materially narrower license over user content which grants just sufficient rights to enable the service to continue to operate effectively. Overall, though, almost all of these services publish terms of use and even privacy policies that can have profound implications for a business’ content.
I’m not arguing against using these services as part of a marketing campaign. These services can be tremendously powerful marketing tools. What I am suggesting is that agencies and their clients should involve lawyers when they plan a campaign as well as when they execute it to ensure that the legal concerns that apply to the particular platform are highlighted and catered for. The relevant terms of use bind the user when the user registers, indicates agreement to the terms and uses the service. It is far too late to read the terms of use in the middle of a campaign, the damage will have been done. As the saying goes, prevention is better than the cure so insist that your agency incorporates appropriate legal planning before launching your campaign.
You probably know about the tremendous outcry over Facebook's recently revised terms of use and the license Facebook took from its users in terms of those terms of use. The media spoke in terms of Facebook's attempt to take ownership of users' content but this was technically incorrect. Facebook never claimed ownership of users' content, merely a particularly broad license that gave it rights over users' content that closely matched those users' rights as owners in addition to content belonging to third parties (this was one of the more objectionable aspects of the license). In other words, Facebook went too far and demanded more than it probably could, legally, and should have, morally. You probably also know that Facebook retracted those controversial terms soon after the outcry and reinstated older terms of use which aren't a lot better. The media moved on to another story and this story became old news.
One of the more helpful things to emerge from the outcry, though, has tipped me off to a much larger problem. Amanda French published a very helpful comparison of the licenses taken by various online services in an effort to contextualise the Facebook license. She compared licenses in Facebook's, Google's, Flickr's, MySpace's, Twitter's and LinkedIn's terms of use, quoting licenses from each terms of use and highlighting their differences. Part of her review included this license from LinkedIn's user agreement:
License and warrant your submissions: You do not have to submit anything to us, but if you choose to submit something (including any User generated content, ideas, concepts, techniques and data), you must grant, and you actually grant by concluding this Agreement, a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royaltyfree right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, and use and commercialize, in any way now known or in the future discovered, anything that you submit to us, without any further consent, notice and/or compensation to you or to any third parties. By submitting any information to us, you represent and warrant that such submission is accurate, is not confidential, and is not in violation of any contractual restrictions or other third party rights. You further agree to inform LinkedIn in the event that any such information has changed since your registration with LinkedIn and, if appropriate, you agree to make such modifications yourself to your profile.
LinkedIn is a very successful and popular business networking site where business people exchange ideas and knowledge daily. LinkedIn is to business what Facebook is to personal users. It is that influential and significant. Regarding LinkedIn's license, Amanda commented as follows:
LinkedIn is the one exception to the general conclusion I state above: its language about its rights to your content is at least as strong as Facebook’s, if not more so. The thing is that people don’t upload pictures and videos to LinkedIn; the main user-contributed content is the facts in a profile (where I worked, where I went to school). People usually don’t mind having that information spread around. Also, you can tell that LinkedIn is thinking mainly about the suggestions for improvement that people submit (”ideas, concepts, techniques”) — but still, LinkedIn would be well-advised to revise.
Despite Amanda's incredibly helpful post, I believe she has underestimated the danger posed by LinkedIn's user agreement and its implications for its users. Save for content published to Facebook by its business users, content subject to Facebook's terms of use is largely personal and its users are concerned that their content not be used for commercial purposes and that their content be effectively removed from Facebook should they terminate their accounts. The issue was largely about ownership of data and the right to decide how that data could be used.
In LinkedIn's case there are similar concerns but there are further concerns about how LinkedIn can exploit potentially valuable business knowledge under a very broad license that quite possibly goes even further than Facebook's previous license.
What LinkedIn's user agreement says
LinkedIn's user agreement begins with a familiar clause informing users how and when they are bound to its terms. As you can see from the extract quoted below, users bound to the user agreement are not just registered users, visitors to the site are also included:
By accessing, viewing, downloading or otherwise using LinkedIn or any webpage or feature available through LinkedIn, any information provided as part of the LinkedIn services, or any related emails, newsletters or services (hereinafter collectively “LinkedIn” or the “Services”), or by clicking “Join LinkedIn” during the registration process, you conclude a legally binding agreement with LinkedIn Corporation, 2029 Stierlin Court, Mountain View, California 94043, USA (“we”) based on the terms of this LinkedIn User Agreement (“Agreement”) and become a LinkedIn user (“User”). If you are using LinkedIn on behalf of a company or other legal entity, such entity may have a separate agreement with us, but you are nevertheless individually bound by this Agreement. If you do not want to become a User, do not conclude the Agreement, do NOT click “Join LinkedIn” and do not access, view, download or otherwise use any LinkedIn webpage, information or services.
In other words, as a user you are essentially bound to these terms of use if you interact in just about any way with LinkedIn or related content and services. LinkedIn does caution its users about the implications of its terms by warning them that interacting with the service binds them to its user agreement and further as follows:
Prior to joining LinkedIn, you must consider and decide, yourself, the extent to which you wish to reveal information about yourself to the large community of LinkedIn Users and to LinkedIn and you must not communicate to LinkedIn and its Users any information the dissemination of which could be harmful to you.
The effect of these sorts of admonishments is to reduce the risk of a user complaining that he or she didn't appreciate the significance or meaning of the terms in the user agreement and should therefore not be bound by them. If you understand what you are agreeing to (and the fact that you are agreeing to something) then you should be held to that agreement. In South African law this is an important aspect of freedom of contract.
As with Facebook's retracted terms of use, the provisions of LinkedIn's user agreement survive termination of a user's account with LinkedIn (with two notable exceptions):
Consequences of Termination
Upon termination, you lose access to LinkedIn. The terms of this Agreement shall survive any termination, except Sections 2 and 3 hereof.
Clauses 2 and 3 deal with users' rights (including the far more limited license LinkedIn grants to users in respect of its content) and LinkedIn's own obligations, respectively. The provisions which endure appear to impact on users more than they do on LinkedIn itself. What is also very important to note is that one of the sections that survives termination is the license I quoted above and which I'll discuss further below.
As I mentioned above, the license LinkedIn takes from its users is very broad and it bears repeating:
... a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royaltyfree right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, and use and commercialize, in any way now known or in the future discovered, anything that you submit to us, without any further consent, notice and/or compensation to you or to any third parties ...
The license covers anything users submit to LinkedIn. This obviously includes biographical information but it also includes the valuable knowledge users share with each other in LinkedIn's fora and Q&A service. These services include shared knowledge across a number of industries from users who are, themselves, frequently experts in their fields. All of this knowledge falls under the scope of this license and can be exploited commercially without any regard to its users' wishes. They have, after all, agreed to these terms. Just to be clear, LinkedIn does not appear to claim ownership of this knowledge or information (in fact, given its position in the OpenSocial community and is association with organisations like Plaxo which advocate user control over their data, I suspect LinkedIn would deny any suggestion that it claims ownership of user content and knowledge) but its license is so broad as to parallel ownership rights. The only thing it seems not to claim is what is known as bare dominium which is the last vestige of ownership the user retains, along with his or her rights to exploit his or her own content and knowledge.
The license applies not just to content you may contribute directly to the service (for example, that biographical data Amanda referred to in her post) but also to "any User generated content, ideas, concepts, techniques and data" you submit to LinkedIn. In addition to the knowledge users submit through the Q&A service daily, consider the number of applications that are available to LinkedIn users and which enable users to "submit" slideshows from Slideshare, blog posts, travel data, uploaded files and business ideas and tips in its groups. If you contribute any information and knowledge through those or other tools, consider whether you are comfortable having that information and knowledge exploited for profit by the service that you perhaps expected to play the role of a facilitator and platform, rather than your competitor.
What now?
Of course I haven't reviewed LinkedIn's user agreement in great detail. I have touched on its license and a few related provisions which have fairly far reaching implications. There may be further terms which may concern you a great deal more in the user agreement. One thing that is clear is that if you were concerned about Facebook's terms of use and the rights it claimed over your personal content, you should be deeply concerned about LinkedIn's rights in terms of its user agreement and the license it takes from you and other users in the process. There is no question that LinkedIn is a valuable and important business tool (I have talked about its benefits to my business on a number of occasions). What is in question is whether its user agreement, and the license it takes from you in particular, goes too far and places you at risk.
As with Facebook's terms of use, the terms in LinkedIn's user agreement go considerably further than is required to provide you with the service it does. It could, at the very least, make use of less exploitative license terms than it does. Ultimately, though, it is up to you decide how much of your knowledge and information you are willing to expose to LinkedIn given these terms.
The 
This, to me at least, is indicative of an industry that is slow to change and address its customers' needs. 
