Question regarding Boing Boing's terms of service, and the indemnification agreement

#1

So, here's a question I've got... I'll go ahead and quote the relevant portion of the ToS here:

USE AT YOUR OWN RISK: INDEMNITIES AND WARRANTIES

When you create content, you are solely responsible for it and the opinions that you express are your own. You will not hold us responsible [you indemnify us] for any User Content that violates any law or infringes the rights of any third party.

In the legal world, indemnify means you agree to hold Happy Mutants, its officers, directors, employees and agents, harmless from and defend them against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way arising out of or in any way connected with your access to or use of the Site, Services, and all Boing Boing and User Content, your violation of these Terms of Service, your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) or any claim that your User Content caused damage to a third party.

HAPPY MUTANTS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER IN TORT, CONTRACT, OR OTHER LEGAL THEORY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE BOING BOING WEBSITE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA.

I'm reading this as potentially nasty - so Boing Boing gets sued for a post I make, I'm required to pay all legal fees, even if the suit has no basis?

#2

I also have a question. boinboing, you stand for everything that's against this:

YOU GRANT US THE RIGHT TO USE YOUR STUFF

**By submitting User Content, you grant us an unlimited license to use
your content in any way we choose**. This includes creative uses such as
republishing the work on our ad-supported Website, forums, and
elsewhere, and practical uses such as copying your content to make
back ups of it, displaying it on the website, and distributing and
modifying it as needed to make the Site work.

Because our servers are located remotely, and because User Content is
retained indefinitely, you grant us these rights worldwide and
irrevocably, **and agree that we don't owe you royalties for any use of
your content based on these rights.**

srsly boingboing?

#3

Someone will be along soon to explain, but I'm quite sure that we need to be given explicit rights to publish your comments and submissions when you submit them for publication, and that we need it to be likewise explicit that we're not paying for them. Almost every major site TOS has this sort of clause -- ours is just human-readable.

#4

OK, I get what you're saying, but it makes it sound like you could take any content I post here and claim it as your own. Furthermore, sometimes the content we post here isn't ours to give (for example an image we found on some tumblr).

Why not use a CC license instead, like:
Attribution-NonCommercial-ShareAlike 3.0 Unported (CC BY-NC-SA 3.0)
or
Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0)

I realize other websites have similar clauses, I've read some in the past, most notably Pinterest's TOS which has a similar one. It bothered me but I don't care about Pinterest the way I care about you.

(And also I figured Pinterest couldn't actually do anything with their TOS since almost none of the content posted there belongs to the users and so the users don't really have permission to give the rights for that content to a third party)

#5

Well, the TOS does mention that you're not supposed to post content that isn't yours.

But, yeah, I'm thinking there would be a much better way to word it, that might make things not even a bit harder for Boing Boing in the future, but at the same time, would protect our rights as commenters.

And that's not even considering the original thing I posted about, the whole indemnity thing.

If I post about a certain sky alien that is rumored to have exploded billions of souls in a volcano, and a certain for-profit organization sues Boing Boing, I'm liable for Boing Boing's fees?

#6

Greetings,

Do you guys think it would be possible to have localized versions of the whole bunch of policies? Like in plain Portuguese?

Cheers

#7

Hi! No, of course we aren't trying to claim we own your content. We just have a license to use it. And your CC license idea is a good one that we and the Discourse folks agree is very important. So that's what we did. : ) From our TOS:

Further, when you make User Content available on Boing Boing, you grant the world a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License to it. Be mindful of this when you post.

But I think we could probably make it clearer. Thanks! More on this and the other questions a bit later. Thanks!

#8

What I believe dr15 is asking for is that it be a CC BY-SA grant to Boing Boing (or CC BY-NC-SA, but given that Boing Boing is commercial use, that's impractical), not an unlimited grant.

CC BY-SA wouldn't affect your business operations in any way (unless you're doing something nefarious), and it'd be better than an unlimited license for us commenters.

#9

Right, I get it. And we thought about that too. The challenge is that CC BY-SA grants the world the right to use your content for commercial purposes. And we would never require you to do that. This seemed like the best way to embrace the spirit of CC while also providing us with the license we require.

#10

You could require that the end user grant Boing Boing CC BY-SA, while granting the rest of the world CC BY-NC-SA.

Granted, that allows Boing Boing to grant others CC BY-SA, which isn't ideal, but...

#11

This is a good question and you are reading it correctly. This language is in every TOS where users can submit content-- we just put it in plain English here. And this is something that is actually good for the Internet!

There's no way any company would provide a space for uncensored conversations and for users to upload content that is not pre-screened if they have to be financially and legally responsible for any lawsuit that might ensue. So while it totally sucks that someone can sue on a suit that has no basis, as you rightly say, there is just no way that hosting sites can agree to be responsible for dealing with it every time it happens.

Does this make sense? It is definitely not intended to be unfair, just part of the bargain that comes with the type of freedom of conversation that BB is allowing on this Forum.

#12

Granting BB an unlimited license does not affect your ownership of your stuff. We can add a line that makes that clear.

I do think BB needs that unlimited license-- to make the Site run, and also for any novel uses they come up with in the future to remix and reuse the discussions in creative ways. Part of participating here is agreeing to their exercising their editorial function to continue to inform the public conversation. Are there specific "nefarious" uses you have in mind?

#13

No, you don't need an unlimited licence. Because you have a limited requirement: you want to use it for your website, and also to remix and reuse the discussions at a later date. Here's the copyright line from one of the websites I run:

When posting to our website, you assign to us a non-exclusive
worldwide licence to reproduce this material, for the limited purposes
of operating, promoting and improving our services. You retain your
own copyright for any other exploitation.

The highlights:
1. Non-exclusive: we're not claiming any ownership
2. Limited purposes of "operating, promoting and improving our services" (i.e. for whatever we need it for, but no, not sell the lot to MegaCorp Inc for them to make into t-shirts and sell you insurance)
3. "You retain your own copyright" (yes, we've already said this above by saying we'd like a non-exclusive licence, but we like to repeat stuff)

#14

And how does assigning that content to BB under CC BY-SA (while at the same time releasing to the world under CC BY-NC-SA) not do the same thing?

It allows the site to run, and it allows BB to remix and reuse the discussions in creative ways, while not signing everything over to BB.

And, while there's the argument that BB could turn around and release your own content under CC BY-SA (allowing it to be used commercially), the unlimited license that BB is demanding now allows the same thing, or worse!

Also, I'll note that plenty of other sites don't demand that their users pay their legal fees on, say, bogus lawsuits.

I think, at this point, I've decided that I do not agree to the terms of service, and this will be my final posting until they change. Damn shame, too, I liked reading Boing Boing.

I'll remain subscribed to this thread, if they do change, someone please post.

#15

[Law Student in my last term, specialized in Intellectual Property law. In Sweden though so I could be somewhat misstaken, American contract law is hard stuff and at times uses very little sense.]

Well, yes - the current unlimited model could possibly allow that (Too tired to read english legaleze, middle of the night here), but writing a smart terms would give all the protection wanted. The correct way would be in the TOS to acknowledge that all posts are released under CC BY-SA and that Boing Boing is allowed a license to use the content commercially, no need for any double CC stuff.

#16

I don't think that would work -- a CC license is a universal grant. not an offer to one entity.

#17

AFAIK, there's no way of limiting the scope of a CC license to one party. If you offer work on a CC-FOO license, that's the license you offer it to for the whole world (because the license language says so). We could copy and paste the CC license, materially alter it so that it limited the CC-BY grant to us alone, but a) then it wouldn't be a CC license (CC is very clear on this: you can't call it a CC license if you alter it), and b) we'd have to do a lot of legal work to make sure that the new language was enforceable (and so would you, to be sure that we were telling the truth). The whole point of a CC license is that it is an immutable document comprised of well-understood terms that have been vetted by top lawyers. Rolling your own licenses by changing the terms of other licenses is like rolling your own crypto by changing the algorithm in ways that seem harmless to you.

#18

Then why not change the wording to jamescridland's version?
You could add something about your right for commercial use, but frankly it would sound better if you explain what commercial use that would be, for example, ads on pages that contain user content but not t-shirts.

#20

I think you're basically correct (except that legal fees must be "reasonable").

At first glance it may appear unpalatable, but here's the thing: If you were to be sued for a statement made by you, published on your own blog (or for some other action taken by you), you'd be in the same situation, ie having to legally defend yourself regardless of the merit of the complaint.

The main difference I can see here is the question of whether the commenter has any recourse to recover costs should legal action against him fail. (I've not yet read the entirety of the Ts&Cs, so don't know whether this has been addressed).

Please note: the content of this comment is not to be considered legal advice. I am not a lawyer.

#21

Folks, remember that legal time runs slow. So the lack of a quick reply to a particular post or question doesn't mean that we aren't looking very closely at how to tweak the text.