I'd Bet Ted Cruz Will Start Supporting Section 230 Once He Realizes He's On The Hook For Parler's Legal Expenses

from the put-your-money-where-your-mouth-is,-ted dept

Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won't moderate content. We've already shown that's false. However, there's another issue with Parler that some are calling out -- which is that you run a risk if you agree to that site's user agreement, because of the following that is buried as #14 on the user agreement:

You agree to defend and indemnify Parler, as well as any of its officers, directors, employees, and agents, from and against any and all claims, actions, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all attorneys fees) arising from or relating to your access to and use of the Services. Parler will have the right to conduct its own defense, at your expense, in any action or proceeding covered by this indemnity.

Now, as we've discussed in the past, many social media sites have indemnity clauses, though they're often much more limited (also, in looking now, I'm pleasantly surprised that it looks like a few have removed indemnity clauses altogether -- I can't find one in Twitter or Tumbler's current terms for example). We've also discussed why people should be wary of many indemnity claims.

Parler's indemnity clause was first called out by @TheWolfLawayer on Twitter, and then later by The Verge's Editor in Chief, Nilay Patel, who called it a "reverse 230 clause."

I wouldn't quite call it a "reverse 230 clause" and I think that some of the screaming about this clause is a bit overblown (again, many other platforms have similar indemnity clauses, though many are at least a bit more limited to situations where the users actually violated some law).

However, this clause should make Ted Cruz and every other Parler user huge supporters of Section 230. Now, we already know that Cruz hates Section 230, has misinterpreted it frequently, and has supported calls to get rid of it, falsely believing that this will somehow stop content moderation from being used against Nazis or something.

But here's the thing: since Ted Cruz is now on the hook if anyone sues Parler over Ted Cruz's speech on that platform... well, then Ted Cruz might want to become a big supporter of Section 230 right quick. Because it will be Section 230 that gets such a lawsuit tossed out quickly and relatively inexpensively. Without Section 230 -- even if the case is frivolous -- Parler's legal fees (by which, thanks to this legal agreement, we mean Ted Cruz's legal fees) would be much, much higher, because the lack of 230 would create a procedural mess, which would likely extend any court case greatly, and rack up Cruz's legal fees.

This is not to suggest that anyone should or would file such a lawsuit against Parler, but seeing how many misdirected cases we've seen filed against sites like Twitter over users' speech on that platform, it wouldn't be surprising if Parler eventually faces similar such lawsuits. And, if that's the case, any of its users (including Cruz) will then be in deep shit if they don't have 230 helping to reduce their legal liability.

So, Ted, maybe drop the nonsense and the lying about 230, and recognize: Section 230 protects you too, especially given your new favorite social media's excessive terms of service.

Filed Under: indemnification, legal fees, section 230, ted cruz
Companies: parler

The Associated Press Has Some Explaining To Do About Its 'Tweeted Contract' To Reuse Viral Content

from the this-is-bullshit dept

Five years ago, we wrote a post detailing the crazy permission-asking media scrum that forms on Twitter when people post photographic or video documentation of something major happening. Under such tweets, you'll often see dozens of reporters asking for "permission" to use the images or videos in news reports. In many cases, fair use would likely cover the usage, but news organizations are understandably gun shy about copyright lawsuits from greedy lawyers who would be all too quick to sue them for merely embedding a tweet.

However, it appears that the Associated Press takes this to absolutely insane, and legally problematic, levels. And it appears that the AP would rather not talk about this.

You may have seen that, over the weekend, there was an explosion in downtown LA. Others in Los Angeles were able to see the fire and posted images and videos on Twitter. One of these was Brian Magno, who tweeted a 21 second video of the fire:

In response, the usual media scrum descended. Among them was an editor for the Associated Press, named RJ Rico. Rico didn't just ask for permission to use the video, like most other reporters, but with the request, he posted an image of what he called a "social media release form." I can't link you to the tweet because by Sunday evening Rico had protected his Twitter account (we'll come back to that later). Thankfully, I got a screenshot before all that happened:

The "Social Media Release Form" is truly a piece of work. Here's what it says:

Social Media Release Form

Please respond to this message with confirmation that you agree to the following:

The Associated Press and its subsidiaries and affiliates ("AP") shall have the world-wide, non-exclusive right to (and all consents necessary to) use, reproduce, prepare derivative works of, edit, translate, distribute, publicly perform, and publicly display the content throughout the world in perpetuity by any and all means now known or hereafter created in all media known or hereafter created, and AP shall further have the right to license these rights to others; and

That you are the copyright owner or the copyright owner's authorized agent and that you are full entitled to grant these rights in favor of AP and that there is no agreement or other restriction preventing this grant of rights. You agree to indemnify and hold harmless the AP and its licensees from and against any claims, losses, liability, damages, costs and expenses arising from any breach or alleged breach of these representations and warranties.

Okay, so, first things first, you should basically never, ever, ever just "agree" to a contract that someone tweets at you as an image. But there are some really problematic elements of this "release form." First is the fact that it grants relicensing rights to the AP, so that they somehow can pass along this image to anyone they want without any restriction. From this, it certainly seems like the AP could then choose to sell the licensing to others and the original copyright holder couldn't do anything about that even if he didn't like it. This term probably isn't quite as bad as some people are making it out to be, and is more in line with typical website terms of service licensing grants, that just cover that the rights can be passed on to future entities (should the organization come under control of another entity, for example). It's still pretty broadly worded though, and anyone agreeing to it should be careful.

But the much bigger issue is the indemnity clause, which would mean that if there were some sort of legal dispute over the image, all of the costs would basically fall back on poor Brian Magno. And that includes if there were a legal dispute with one of those licensees down the road that he agreed to let the AP pass along the license to. The indemnification clauses are, tragically, common in many freelance contracts, and I've taken to simply crossing them out of any writing contract I've engaged in (and have not had anyone push back on that yet). Suffice it to say, no one should agree to these AP terms. If you want a thorough explanation of how these clauses could come back to bite you, this is a good thread:

A bunch of folks started calling this nonsense out, including lawyer Jay Wolman, who worried that people were agreeing to the "release form" without speaking to a lawyer or understanding what they were agreeing to. In response, Rico blocked him on Twitter, which is pretty fucked up. Indeed, a bunch of law twitter started pointing out how ridiculous this policy is, and Rico started blocking more of them:

In short, you never know if there might be a legal dispute down the road, and there are countless reasons why there might be, even if you don't care about the image at all. And, yet, if there is, you've just agreed to pay a giant company's legal fees. With a tweet. Think about that.

That's bad. And, then on Sunday (as already noted), Rico took his entire account private.

I'm kind of wondering what that even means for anyone who agreed to Rico's tweeted contract in the first place. Unless they took a screenshot of it, they can't even prove that they ever saw it or what they agreed to -- because it's now hidden away.

Wolman began investigating this entire practice, and has traced it back at least to 2015 (coincidentally, a month after my article about how this Twitter media scrum descends on such things):

It's possible it goes back even earlier, but as Wolman has investigated, another AP reporter blocked him and then went private.

This is a horrific practice by the Associated Press, and it really should (1) apologize, (2) revoke any of those agreements for anyone who did agree to them, and (3) no longer do that again.

Filed Under: embedding, fair use, indemnification, journalists, permission, rj rico, scrum, social media release, tweeted contracts, viral content
Companies: associated press

For Those Freaking Out Over Pinterest's Terms Of Service, Have You Stopped Using Every Other Internet Site Yet?

from the calm-down,-sparky dept

Last month we suggested that copyright holders stop freaking out over Pinterest. At the time, we noted there were two areas that people were panicking about: one was the terms of service and the other was whether or not Pinterest itself was violating the copyrights of images that are "pinned" by its users. We focused on the latter issue (and pointed out it was stupid) and breezed past the first issue by noting that the terms of service issue was silly, because the terms are mostly boilerplate language used by pretty much every online site.

Unfortunately, it appears that not everyone reads Techdirt (tragic, that) and the freakout has continued -- and it only seems to have grown over the past few weeks. We keep seeing more and more articles giving the terms of service issue attention. So many of the articles point back at a silly blog post by a lawyer describing how she "tearfully deleted" her Pinterest boards after reading the terms of service. For whatever reason, this story went viral, despite the fact that even the way she wrote it suggests this is one of her first forays into internet terms of service and copyright issues. She also notes in her post that "you have no right to reproduce this article or any portion thereof" which is a copyfraud statement, overclaiming rights. Yes, I do have the right to produce "portions thereof" in situations where it's fair use, and I will do so -- such as here, when I am commenting on her article.

Either way, her "tearful" post covers ground that's been covered many times before. This same issue comes up every so often when people read online terms of service for the first time. In the past we've seen similar freakouts about Twitpic, Google Plus and other sites as well.

Thankfully Nancy Sims, the copyright librarian at the University of Minnesota Libraries, puts the smack down on the FUD that people are kicking up concerning Pinterest's indemnification, right to share and copyright license clauses. She notes that these elements are found in just about every user-generated content site's terms of service, and goes through the details of Tumblr, YouTube, Facebook and even her own University's terms of service:

Tumblr

Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

Full Tumblr Terms of Service

YouTube

Indemnity: "...you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"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 Content..."

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service

Facebook

Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))

Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

This kind of stuff is standard. Hell, even we've got some similar terms over at the Insight Community (and we had to fight with our lawyers to push back on some of them). All of these terms are pretty standard. They're basically meant to prevent the company from getting sued if you abuse the service, which is kind of silly since the companies are mostly protected by safe harbors anyway, and no tech startup would ever actually use one of these indemnity clauses against an ordinary user because they'd then lose every single other user they have.

I recommend people read the rest of Sims' article about all of this, as she notes that there's a tremendous amount of FUD making the rounds concerning Pinterest, which seems to be creating an unnecessary chilling effect against using the site.

Filed Under: copyright, indemnification, terms of service
Companies: facebook, pinterest, tumblr, youtube

If You Build A House Based On Copyright Infringing Plans That You Bought In Good Faith... Are You Infringing?

from the maybe-so dept

Michael Scott points us to an interesting -- if a bit technical legally speaking -- discussion over whether or not indemnifications exist for copyrighted materials. The discussion involves a homebuilder, who built some homes based on plans he bought from a third party. It later turned out that the plans were infringing copies, but the builder believed they were legit. So, in any common sense world, the liable party should be the guy who sold the infringing plans. But at least some lawyers and judges seem to believe that there is no indemnification in copyright law, and thus the copyright holder can basically sue whoever he wants up and down the chain. But, of course, not everyone sees it that way, and by the end of the post, it's pretty clear that the court in this particular case got it wrong. Blaming the builder, who had no clue that the plans were infringing, simply makes no sense.

Filed Under: building, copyright, first sale, indemnification