LinkedIn’s terms of use: even worse than Facebook’s

Looking back at Facebook’s terms of use

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.

LinkedIn’s bigger threat revealed

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.

(Note that Amanda’s content is published under a Creative Commons Attribution Non-Commercial 3.0 license although I am quoting her under a fair dealing exception to copyright protection)

Putting it all in context

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.

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