On avoiding anxiety-inducing words in online terms of service


Are “worldwide” “perpetual” rights really necessary?

Designer/developer Robert Nealan wrote a post questioning whether self-hosted blogging is dead. The piece is interesting as a commentary on the current state of blogging in general — a state that has changed a lot in the past decade or more, primarily due to the influences of outside social platforms, namely, Twitter, and more recently, as Robert notes and critiques, Medium.

The piece is a refreshing singing of praise for self-hosted blogs (like the one you’re reading). But another, no less important element of the post is an undercurrent shaped by a not-unjustified freak out of sorts over what third party platforms’ online terms of service say about their claim of rights in the users’ intellectual property. When we look to the terms of service for some of these platforms (and even more so if we actually think about what those terms say), we recognize that platforms quite often over-aggressively grab onto rights to do things with the content the user posts. So much depends on how these terms of service are written.

Lawyers can learn a lot from the commentary like that Robert Nealan has posted. As an object lesson and example, he takes issue with Svbtle’s terms, particularly the following:

Marketing. As a paid customer, you give Svbtle a perpetual world-wide license to use your company’s assets and logos, unless Svbtle agrees in writing otherwise. These assets and logos will be used purely for marketing and sales efforts, such as being displayed on the home page.

Good practice here would might consider adopting the ethos of certain “by design” concepts we see in the privacy and data security world. Think of “privacy by design” or “security by design” — the idea that a technology developer (e.g., someone building an app) should build the system in a way that it does not keep data around for longer than what is needed, and certainly for no longer than what the developer promises its users it will.

The same could be applied here — and it seems even simpler — for platforms to adopt principles establishing they will only exercise rights in relation to users’ intellectual property for only as long as they meaningfully need to do so. Let’s call it “Appropriate Rights by Design“. Words like “perpetual” and “world-wide” can be frightening. A platform hosting users’ content probably doesn’t need such extensive rights. If that’s the case, then the platform shouldn’t grab those rights. Those terms can be a red-herring. Robert Nealan took comfort in his piece in Medium’s terms which say that users of Medium “own the rights to the content [they] post on Medium,” and that Medium “[doesn’t claim ownership over any of it.” Funny thing is, a platform that grabs a world-wide, perpetual license could truthfully say the very same thing. So by not grabbing more rights than necessary, i.e., applying principles of Appropriate Rights by Design,  platforms will avoid having users latch on to scary words unnecessarily. For as long as this happens, it’s likely users will continue to have anxiety about moving to a third-party hosted platform, and in the same way, keep a light shining on what’s good about self-hosted blogs and other platforms.

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

Photo courtesy Flickr user fady habib under this Creative Commons license.

internetcases turns 10 years old today

Ten years ago today, somewhat on a whim, yet to fulfill a need I saw for discussion about the law of the internet in the “blogosphere” (a term we loved dearly back then), I launched internetcases.

What started as a one-page handwritten pamphlet that I would mimeograph in the basement of my one-bedroom apartment and then foist upon unsuspecting people on street corners has in ten years turned into a billion dollar conglomerate and network. internetcases is now translated into 7 languages daily and employs a staff of thousands to do the Lord’s work fighting Ebola and terrorism on 4 continents. Or it’s a WordPress install on some cheap GoDaddy space and I write when I can.

All seriousness aside, on this 10th anniversary, I want to sincerely thank my loyal readers and followers. Writing this blog has been the single most satisfying thing I’ve done in my professional life, and I am immensely grateful for the knowledge it has helped me develop, the opportunities for personal brand development it has given (speaking, press, media opportunities), but most of all, I’m grateful for the hundreds of people it has enabled me to connect with and get to know.

Blogging (and the web in general) has changed a lot in 10 years. And the legal issues arising from the internet continue to challenge us to stretch our thinking and amp up our powers of analysis. It’s great to have a platform on the web from which to share news and thoughts about the role that technology plays in shaping our legal rules and our culture.

Thanks all.

Injunction against blogger violated the First Amendment

Prohibiting former tenant from blogging about landlord was unconstitutional prior restraint against speech.

800px-Taize-SilenceDefendants wrote several blog posts critical of their former commercial landlord. The landlord sued for defamation and tortious interference, and sought an injunction against defendants’ blogging. The trial court granted the injunction, determining that defendants had “blogged extensively about [plaintiffs] and many of these blogs [were] arguably defamatory.” Although the court noted that a trial on the defamation claims was yet to be held, it ordered defendants “not to enter defamatory blogs in the future.”

Defendants sought review with the Court of Appeal of Florida. On appeal, the court reversed and remanded.

It held that injunctive relief was not available to prohibit the making of defamatory or libelous statements. “A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” But the court noted a limited exception to the general rule where the defamatory words are made in the furtherance of the commission of another intentional tort.

In this case, plaintiffs alleged another intentional tort – intentional interference with advantageous business relationships. But the court found that plaintiffs failed to present sufficient evidence to show they were entitled to an injunction for that claim. The trial court record failed to support an inference that the defendants’ blog posts had a deleterious effect upon defendants’ prospective business relationships.

Chevaldina v. R.K./FL Management, Inc., — So.3d —, 2014 WL 443977 (Fla.App. 3 Dist. February 5, 2014)

Image credit: By Maik Meid (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

Online threats made by blogger were not protected by the First Amendment

State v. Turner, 2011 WL 4424754 (Conn. Super. September 6, 2011)

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

  • [T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment
  • [My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].
  • These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
  • If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

1 2