The solution to bad terms of service? Creative Commons and clarity

One of the big barriers in the way of commercial content creators (be they businesses or individuals) adopting web-based applications and services is the onerous terms and conditions these often present. Blanket ‘rights grab’ clauses are common, with even big names like Facebook and Google falling foul of the practice.

Talk to such companies and they brush off such terms as necessary legalese. You need to waive all your legal and moral rights to everything you post on/upload to/share with/create using their service, they say, because they need the right to handle your work and to copy and display it on the site without putting themselves at risk of breaching any laws. *Of course* they don’t intend to issue that song you posted as a chargeable digital download or use it as the soundtrack to an advertisement for their site without paying you. *Naturally* they’re not going to start flogging T-shirts based on that design you uploaded. And it would be *nonsense* to suggest they’d claim ownership over something you used their service to collaborate on with others.

It’s certainly true that if they did, they would likely face a wave of bad publicity and would probably also be on pretty dodgy legal ground, particularly if they’d given public assurances that their terms should not be interpreted in a particular way. But many have not made such assurances, and in some cases the threat of bad publicity might be outweighed by commercial advantages. If a business is on the brink of collapse, for example, there is a clear incentive for them (or for any organisation acquiring them, which may have entirely different values to those of the original founders) to attempt to claw back whatever revenue they can within the law.

That’s why anyone posting valuable content is going to be increasingly vigilant about exactly what they’re signing up to, as evidenced by this interesting and much-shared post from the Advancing Usability blog earlier this month, which compares the terms and conditions of video hosting sites in Canada. The lesson for service providers here is that if you want your social web application or service to attract professional content creators in future, you need to be clear that you’re not going to hijack their work. The problem is that legalese and plainspeak are mutually exclusive. In most cases, companies do not want to hijack users’ work, they simply want to cover their backs. But legal teams, used to the click-through-without-reading culture, seem to have got into the habit of being cautious to the point of complacency.

So how can service providers strike the right balance? The best example I’ve seen to date is from Aviary.com, an innovative start-up service offering a suite of web-based creative design apps. Aviary makes use of non-commercial Creative Commons licensing to ensure it has the permissions necessary to store and display creations users have posted publicly on the site without claiming commercial copyright over the works. Users also have the option to keep their work private if they choose, in which case the CC licence won’t be applied. When I spoke to Aviary co-founder Michael Galpert a few weeks ago, he told me: “We’re applying the CC licence to publicly-displayed works because we don’t want to be confrtonted with any legal problems. But in order for an artist to have full control over their work they will  sometimes want to retain full copyright, so we also give them that option.”

More importantly Aviary’s terms and conditions, while appearing in the usual legalese, are accompanied by a layperson-friendly sidebar clarifying exactly what those terms mean in practice. Galpert said: “Usually people assume because a lawyer’s approved something they can just slap it on their site. But the user or customer doesn’t necessarily understand the legal-speak. So even though a company might have their users’ rights in mind, it doesn’t come across that way when all that appears is a bunch of impenetrable jargon. Avi [Muchnick, co-founder and CEO] was intent on making our terms clear to everyone. Fortunately, he went to law school so he understands the legalese. When the document came back from the lawyers he slogged through the whole thing himself, translating it into everyday language to make sure it was legible for anyone coming to the site.”

The sidebar summary includes such unambiguous statements as:

  • “You own your content.”
  • “Some content may be licensed under Creative Commons.”
  • “If you allow another user to make a derivative, you still own your work.”
  • “You can download anything on the site for personal, non-commercial use only. Other uses are not OK (unless you purchased the work from the creator).”

My guess is that when presented with a choice of comparable services, users will increasingly opt for those displaying fair, clear and unambiguous terms like Aviary’s. Which gives me  heart  the trend will catch on. Who knows, perhaps the new game for lawyers might be to move away from their traditional plays of occlusion, obfuscation and obscurity. Now that really would be progress.

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2 Responses to “The solution to bad terms of service? Creative Commons and clarity”


  1. 1 Advancing Usability
  2. 2 Owned? Legal terms of video hosting services compared
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