Case study: Zoopy’s terms of use

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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