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.
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