Sep 082008

Google has again attempted to clarify its terms of service on its blog. Mike Yang, at Official Google Blog: Making terms of service clearer writes:

To be clear: our terms do not claim ownership of your content — what you create is yours and remains yours. But in lawyer-speak, we need to ask for a “license” (which basically means your permission) to display this content to the wider world when that’s what you intend. 

I don’t believe Google has ever attempted to “claim ownership” of content; my comments have always been about the specific terms of the license. Yang goes on to discuss other license agreements; he includes links to the terms of service for Amazon, Ebay, and Facebook.

Amazon and eBay both claim broad rights to content posted on their services; they do not limit these rights in any substantive manner. With respect to products, this makes sense on a certain level–Amazon and eBay have a vested interest in attempting to sell their users’ products as much as possible. I question why these rights need to be perpetual and irrevocable, but it’s fairly clear to me that if the companies do well, the sellers on Amazon and eBay receive indirect compensation via higher sales. In Amazon’s case, I do not believe it is appropriate that Amazon retains all of the rights to reviews and comments posted by their users; however, I don’t post comments or reviews on Amazon.

Facebook, who has been reviled for their terms of service (see here and here), has a very consumer-friendly clause in their license agreement with respect to user content. While they do initially claim a perpetual, irrevocable license, the terms of service go on to state:

If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content. 

Worded another way, Facebook won’t use your content at all if you “remove” it, but they don’t want to be responsible from deleting your content in the form of “archived copies” from their servers.

The solution for Google remains the same: remove the “promote” term, and modify their “irrevocable” and “perpetual” license to allow people to terminate the license unless the user is explicitly warned at the time of submitting their content. If anything, I would like to see Google’s base terms of service provide for a lesser set of rights; additional terms of service for other products could be used to increase these rights rather than limit these rights.

I am disappointed that Yang chose to contrast Google’s terms of service with those of eBay and Amazon: the companies are distinctly different than Google. Google’s comparison with Facebook is a bit more apt, but as I just pointed out, the Facebook license can be terminated by the creator of the content.

I’ve made quite a few posts on this topic, but it’s an important issue to me. First, I feel that people should be aware of what happens to the works they create when they upload them to the Internet. Penalties for copyright infringement for unregistered works in the United State are fairly weak as it is, and once you grant a company or person an perpetual and irrevocable license you have absolutely no way to ask people to stop using your material. Second, I like Google as a company and I enjoy using their services. I would like them to succeed, and I believe that these kinds of problems can hinder Google in the long run. As distinct from some other companies, I believe Google tries to operate in a clear and open manner, and I would like them to continue to do so.

 Posted by at 9:46 am
Sep 042008

Mike Yang, Senior Product Counsel at Google, posted the following on the Official Google Blog: Update to Google Chrome's terms of service:

So to show a blog, we ask the user to give us a license to the blog’s content. (The same goes for any other service where users can create content.) But in all these cases, the license is limited to providing the service. In Gmail, for example, the terms specifically disclaim our ownership right to Gmail content. [Emphasis added.]

Unfortunately, he does not explain why the license is perpetual and irrevocable. (It’s not an insurmountable technical issue; the terms for YouTube are neither perpetual nor irrevocable.) And what he states appears to directly contradict the Terms of Service Section 11:

This licence is for the sole purpose of enabling Google to display, distribute and promote the Services[…] [Emphasis added]

Google is a great company, and I hope they address this issue with their Terms of Service soon. The short term fix would be to remove the phrase “and promote;” they could address the “perpetual” and “irrevocable” portions later.

 Posted by at 3:23 pm
Sep 032008

Google received a lot of grief for attempting to apply their standard terms of service to Google Chrome, their new web browser. Google has reacted by modifying the End User License Agreement. Section 11, which used to transfer rights to Google as per the standard Terms of Service, has been modified to read:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.

Kudos to Google for making the change.

Unfortunately, Google has not addressed the same issue with Picasa Web Albums. Even worse, their new release of the Picasa client, version 3.0, now contains the same poor Terms of Service that the Google Chrome browser used. In short, just by installing the Picasa client on your computer, you give Google rights to your images. It’s too bad–I would love to install and play with the Picasa client, but I would prefer not to grant Google “perpetual, irrevocable, worldwide, royalty-free” rights to my images to “promote” their service.

 Posted by at 5:28 pm
Aug 202008

I use Blogger to publish my blog. Recently, after making a post, I noticed that there was an advertisement for Picasa Web Albums for Google in the Blogger interface. I decided to check it out and clicked on the link. I saw a standard Google launching page with a license agreement. I don’t generally recall seeing license agreements for many Google services, so I decided to check it out. One interesting aspect of the licensing agreement was that it was nearly impossible to read online–the text was inserted into a HTML form with no line wraps. I had to copy and paste the text into a word processor. (I later found the the Picasa Web Albums TOS on a standalone web-page, but this is not what most users will be agreeing to in their click-through agreement.)

The license agreement contained the standard legal definitions at the top followed by many terms and conditions. One of the definitions was fairly interesting:

1. Your relationship with Google
1.1 Your use of Google’s products, software, services and web sites (referred to collectively as the “Services” in this document and excluding any services provided to you by Google under a separate written agreement) is subject to the terms of a legal agreement between you and Google.

The important part to note here is that “Services” is defined as any product from Google. It’s not just Picasa.

Later in the document are these terms:

9.4 Other than the limited license set forth in Section 11, Google acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services[…]

This is good news, right? Google is not claiming any right to your content. But what about that “limited license” in Section 11?

11. Content licence from you
11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
11.2 You agree that this licence includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

Section 11 starts out so well: “You retain copyright and any other rights you already hold in Content[…]” but then it takes an odd turn.

In short, you are essentially giving Google rights to your content to promote their services forever in any location for free. In fact, they are also stating that they can grab your content and give it to other companies. And you can’t stop them.

You may think that other services have similar terms. Not so. Here is the relevant sections from theTOS from Flickr (Yahoo):

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.

Yahoo is not grabbing any additional rights than what they need to provide your service. And those rights go away when you remove your cotentn.

Interestingly, while Yahoo does respect your rights towards photos, graphics, audio, and video, they do make a license grab for othercontent:

With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Service other than Yahoo! Groups, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

In other words, don’t post a preview of your next novel to a Yahoo group!

Let’s also take a look at Apple’s Terms of Service for their MobileMe service:

Except for material we may license to you, Apple does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. Said license will terminate within a commercially reasonable time after you or Apple remove such Content from the public area.

It’s pretty cut-and-dried. Apple only limits their rights to the ones they need. And once your content is no longer public, the rights terminate. It’s very similar to the Flickr license with respect to photos.

What about other Google services? Here is the relevant section in Blogger’s TOS:

Your Intellectual Property Rights. Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services.

Basically, here Google states that they need a license to distribute your content. However, it is only for the purposes of “displaying and distributing” the services; it is neither “perpetual” nor “irrevocable,” nor is it for “promoting” the services. Blogger’s terms are very similar to Flickr’s terms and Apple’s terms.

YouTube has similar language in their terms of service:

C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.

If you read the terms carefully, YouTube is grabbing a license for both them and anyone else they want to specify “including without limitation for promoting and redistributing part or all of the YouTube Website.” While they are snagging some promotional rights, as distinct from Picasa Web Albums, the terms are neither “perpetual” nor “irrevocable.” In fact, YouTube explicitly states that the licenses terminate after you remove your content. They even reiterated their stance in a blog posting. (Except for your comments–you are pretty much giving YouTube rights to your comments forever.)

What does this mean for a professional photographer? You should think carefully before using Picasa Web Albums to display or store your content. It will most likely decrease the commercial value of your photos, and you will certainly lose a measure of creative control. Since Google is not making a claim of moral rights, you may still retain some control in some countries, but in the United States the terms and conditions that Google uses gives little recourse to photographers.

What does this mean for amateur photographers? If you don’t mind who uses your photos, feel free to use Picasa Web Albums. If there are photos of people in the images, Google may not be able to use them if they don’t also own model releases anyway. However, be aware that Google could use your photos in just about any way they deem fit, and that you will have limited recourse.

I plan on writing a quick note to Google–in my opinion, this kind of license grabbing is poor behavior. Of course, I’m not a lawyer and may have missed something obvious from the Picasa Web Albums Terms of Service. If I have, please let me know, and I’ll be glad to post a correction or even remove this post entirely.

[Edited on 2008-08-20 to add the following]
A Google search for “Picasa Terms Of Service” returns Picasa: Terms of Service as the first link. These terms are similar to the Flickr and Apple TOS. However, I believe this is an outdated terms of service. “Terms of Service” is the highlighted navigation link on the page; clicking on “Program Policies” and then back to “Terms of Service” returns you to the page described above–not the one returned from a Google web search.

 Posted by at 2:52 pm
Mar 282008

PhotoShelter - I <3 Photos<3 Photos” />It’s been around nine months or so since I started to work at PhotoShelter, and I’m having a great time. When I first started here, we were a company of less than ten people in a small office near Madison Square Park (and Shake Shack). I didn’t have a desk as much as I was sharing portions of two other peoples’ desks. A month or so after I started, we moved down to Union Square on the second floor of the Decker Building. While we did move away from Shake Shack, we did end up overlooking the Greenmarket in Union Square, one of the first farmer’s markets in New York City. We’ve also grown–there over 25 full-time employees!

I’ve worked on a lot of interesting projects here. For example, not only have I learned how to use Apple’s development environment Cocoa, but also I’ve learned the intricacies of international tax law and how it applies to royalties. (Do you know what W8-BEN and 1042-S forms are? I do!)

Our largest project in the past year has been the launch of the PhotoShelter Collection, a photo licensing site. Photographers submit their photos to us, and after our editors review the photos the photos are made available for purchase. There are over 15,000 photographers from over 120 countries, and we add over 4,000 images each day. There are many competitors in this market, and our goal is to offer buyers images they can’t get elsewhere while respecting photographers by acting in a transparent manner.

We currently have a promotion running where new buyers can get 20% off of any purchases for three months. I think the site is very easy to use as a buyer, and it’s even possible to license images for personal use. The Collection does not sell prints or merchandise; the photo is provided as a digital file.

[In the interests of full disclosure, I should mention that there is a fun contest in the office as to who can refer the most buyers this month. That being said, please do not flood the site with bogus registrations on my behalf! :-)]

We are also always looking for new photographers to submit images. You can join as a photographer with no risk or costs. We offer photographers a 70% commission on all image sales, and we work with our photographers as well as if not better than any other company in our business. Most of the founders of the company have worked as professional photographers, so we have a strong appreciation for their work and photography in general.

If you are a photographer but aren’t interested in having PhotoShelter sell your images through the Collection, you may also want to consider setting up a Personal Archive account. Quite frankly, it’s crazy to not back your images off-site if you are a professional photographer. Heck, it’s even crazy if you are a hobbyist that really cares about your photos. I feel strongly about this issue: I try to tell every photographer I know that even if they don’t store their photos at PhotoShelter, then at least back them up with one of our competitors. PhotoShelter allows you to set up a free account with 50MB of storage space, so you can easily check it out without paying anything. And, if you decide to go with the Standard or Pro accounts, you can integrate PhotoShelter into your own website with e-commerce.

Rachel HulinOne of our recent hires is Rachel Hulin; she is in charge of Shoot the Blog! I read it throughout the day–her commentary is spot on. Without the blog, I would have never run across this photo shoot with a lion.

PhotoShelter is a great company to work for. The folks here are smart, the location is terrific, and we try to do the right thing. I believe in our products, and hope that other folks like using our site as much as I enjoy working here.

 Posted by at 6:32 pm
Jan 292008

Last week, I wrote about the Mike McConnell profile in The New Yorker. In the profile, Ed Giorgio characterized security and privacy as a zero-sum game. This week, Bruce Schneier wrote an eloquent rebuttal to Giorgio’s assertion. Schneier’s thesis is concisely stated: “The debate isn’t security versus privacy. It’s liberty versus control.” His points are on the money, and I wish more people in the United States heeded his words.

[Schneier’s essay was also posted to]

 Posted by at 9:07 am
Jan 162008

The New Yorker cover of 1/22/2008The January 22nd issue of The New Yorker (last week) has an in-depth profile by Lawrence Wright on the Director of National Intelligence, Mike McConnell. All executive-branch intelligence departments report to McConnell in one way or another. “The Spymaster” discusses many topics including: the use of torture, defending the U.S. infrastructure against cyber-attacks from foreign countries, FISA, security screening, the state of IT in our intelligence agencies, and the balance of privacy versus spying. I was not able to find an online version, but it is worth picking up a copy at your local newsstand or visiting the library. (If you decide to read this issue, also check out article on the MySpace hoax and subsequent suicide.

Some quotes from the McConnell profile include:

  • The fantasy worlds that Disney creates have a surprising amount in common with the ideal universe envisaged by the intelligence community[…]
  • [McConnell said] “If the 9/11 perpetrators had focussed on a single U.S. bank through cyber-attack and it had been successful, it would have an order-of-magnitude greater impact on the U.S. economy”
  • [Ed Giorgio, a security consultant who ran both the code-breaking and code-making departments at the N.S.A., said] “There are forty thousand Chinese hackers who are collecting intelligence off U.S. information systems[…] We should never get into a hacking war with the Chinese.”
  • [On the definition of waterboarding as torture] The reason that he couldn’t be more specific, McConnell said, is that “if it ever is determined to be torture, there will be a huge penalty to be paid for anyone engaging in it.”
  • [On being asked if Al Qaeda was America’s greatest threat] “No, no, no, not at all” [McConnell] said. “Terrorism can kill a lot of people, but it can’t fundamentally challenge the ability of the nation to exist.”

Wright also briefly discusses his own experience of being tapped by the U.S. government and visited by the FBI. McConnell’s response, while noncommittal, is quite interesting.

The article is 18 pages and required reading for anyone interested in U.S. policies regarding spying and privacy, and the agencies responsible for implementing those policies. It’s thought provoking and provides valuable insights into the man most responsible for spying in the world.

I originally submitted this to Slashdot, but they didn’t run the piece. Today they ran a one paragraph story on a one screen response on to a single quote from the 18-page New Yorker article. Not surprisingly, The New Yorker article is better than either the Slashdot or ArsTechnica pieces. It has better writing, more sources, a higher quality of analysis, and a broader scope.

[Update: included link to article abstract. Thanks, Faisal!]

 Posted by at 11:20 am
Dec 222007

I’ve said it before, but I think it bears repeating: Apple is just as “evil” as Microsoft, just not as successful.

From the parody blog site, The Secret Diary of Steve Jobs comes the following four posts:

[Link via /.]

 Posted by at 11:35 pm
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