July 3, 2011

Terms of (Dis)Service...

by Chris Randall
 

This is a subject which will no doubt be incredibly un-interesting to you, but which should be paid attention to. I'm not gonna do it in the neck-bearded "Information Wants To Be Free" bullshit arm-waving way, and neither am I gonna give in to the "well, I'm sure they mean well..." frame of mind. I'll just present the facts, and my interpretation of the ramifications, and let you come to your own conclusion.

On Friday last, DropBox, a service we all know and use (it figures heavily in to the Audio Damage workday, for instance) changed their Terms Of Service, and specifically the rules regarding the rights to your uploaded files, to read as follows:

We sometimes need your permission to do what you ask us to do with your stuff (for example, hosting, making public, or sharing your files). By submitting your stuff to the Services, you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent reasonably necessary for the Service. This license is solely to enable us to technically administer, display, and operate the Services.

Now, any musician that has ever done work-for-hire will recognize that wording. It is the general "I made this, you paid me" boilerplate that we see all the time. So what's it doing here in the DropBox TOS? And why do I care? The problem here is that the wording is so vague that it serves as a catch-all for any possible scenario. Of particular note is this bit: rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display

Now, any normal, reasonable person would be all "well, they need to, e.g., make thumbnails for your Public folder, blah, blah, blah." And that's fine, and totally acceptable. They want licensing terms that remove any possible potential lawsuit from that. I can accept that. The problem isn't that, but rather that the wording is so broad as to include virtually any scenario they might feel is appropriate. They say "[t]his license is solely to enable us to technically administer, display, and operate the Services." That makes perfect sense on the face of it, but what does that even mean?

Now, you're thinking "Chris, you've gone off your rocker. Any reasonable person knows exactly what it means." And you're absolutely right.

But I'll tell you what I'm right about: lawyers are not reasonable people. And the boards of large corporations aren't reasonable people either. And these people make their living exploring the hazy area between the intent of a contract and its actual wording. And they make good livings. And they're way, way better at reading and interpreting that intent than you or I are. Sure, DropBox is run by reasonable people. Now. What about next week when it is purchased by Yahoo. Or Google. Or the marketing company that bought MySpace?

Now, it doesn't have to be like this. Look at, for instance, the relevant passage in the TOS of Box.net:

By registering to use the Services, you understand and acknowledge that Box.net and its contractors retain an irrevocable, royalty-free, worldwide license to use, copy, and publicly display such content for the sole purpose of providing to you the Services for which you have registered. In the event that you give Box.net the right to distribute your content, additional terms may apply to Box.net's usage or distribution of this content. You continue to retain all ownership rights in any User Content you provide and shall remain solely responsible for your conduct, your User Content, and any material or information transmitted to other Users for interaction with other Users. Box.net does not claim any ownership rights in any User Content.

This is much less open to interpretation, and still makes perfect sense. Or how about SugarSync? Same thing:

After setting up your account and downloading our Software, you can select the Files you want to sync and/or store. You can change the Files you want to sync or store whenever you want. In order to make the Service available to you, we need your permission to sync and store your Files. Accordingly, you hereby grant to SugarSync a license: (i) to use, copy, transmit, distribute, store and cache Files that you choose to sync and/or store; and (ii) to copy, transmit, publish, and distribute to others the Files as you designate, whether through the sharing or public linking features of the Service, in each case solely to provide the Service to you.

So, I'm going to give DropBox a few days to pull their collective heads out of their collective asses and get with the program. But the simple fact of the matter is that their wording is so broad that it includes virtually any purpose they could conceivably come up with, and that's simply unacceptable.

EDIT: I don't know if this blog post or my letters had anything to do with anything (although, in my defense, I was quoted in several blogs of more, uh, respectability?) but on Tuesday they updated their TOS to define "stuff" (one of my major complaints) and clarify the points of contention. It is essentially in line with the other two TOS I quoted above now.
 
 
 

21 comments:

Page 1 of 3
 
 

 
Jul.03.2011 @ 6:33 PM
arphaus
I'd feel a bit more concerned if the last bit were not there: 'to the extent reasonably necessary for the Service. This license is solely to enable us to technically administer, display, and operate the Services.'
 
 

 
Jul.03.2011 @ 6:46 PM
Taxist
I think a big part of the problem is that the law ends up getting abused by both sides of the fence. A company doesn't word things generally enough, and some asshole takes advantage of it. A company words things to vaguely and it puts their customer base at risk for being taken advantage of.

I depend on dropbox at work as well, however the files that are being shared are so obscure that they would be useless to practically anyone. And even then, I doubt anyone would be ridiculous enough to care to look through the most boring database tables in the world. I am not too concerned, however that would change if it had anything to do with my music.
 
 

 
Jul.03.2011 @ 7:15 PM
bodo
I had exactly the seem confused feeling when I recieved their 'update' yesterday.

The line that reads:

'you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent reasonably necessary for the Service.'

seemes very alarming to me. Not that I have anything to worry about, I just can't stand the idea that the Service can be messed with (aka derivative works) in a freely matter without any questions asked.
 
 

 
Jul.03.2011 @ 8:11 PM
noisetheorem
We use drop box at work. I sent the TOS update to our legal department and they immediately told us to stop using the service. For several reasons, thats easier said than done, but we will make the switch to SugarSync or another service that does NOT have this kind of vague wording used in it's TOS.
 
 

 
Jul.03.2011 @ 10:15 PM
oscillations
I use Dropbox quite a bit and *everything* that I care about is either stored on an encrypted volume in my dropbox folder or itself encrypted.

It's a minor hassle but provides a lot of piece of mind. It may not work well for multiple people collaborating, but for individuals I highly recommend it.

Of course this doesn't excuse their TOS wording. But even if their TOS was all love and baby sheep I'd still be doing this.
 
 

 
Jul.03.2011 @ 10:29 PM
chaircrusher
The problem isn't the law or the wording of the contract, the problem is that any legal conflict with a large corporation has less to do with the wording of contracts than it does with how much you can afford to spend on legal representation. That's why 'fair use' has been weakened into meaninglessness. The artist using 'fair use' might have a great case but if they're up against a giant mulitinational corporation, they lose before they even begin to contest the issue.

But yeah, they could have worded their contract to protect themselves without making it sound like they reserve the right to steal your work.
 
 

 
Jul.04.2011 @ 1:18 AM
valis
I think it's inevitable that any of the modern services or systems that we use will eventually be co-opted into the corporatized mainstream of "shit you no longer want to use/do/watch/hear" and people who are under the age of "fuck it I just want my social security check" will tend to move on at the speeds that are natural to where they stand on the novelty train.

Take Skype for instance, it's not *really* been trustworthy since .de made a stink over the cryptography (which is in theory secure still but the discussion over the data infrastructure in .de itself disappeared REAL fast). And now fast forward a few years past when anyone concerned about their own financial/corporate/etc interests should have moved on and their new corporate masters outright admitted that one of the first things they'll do is insure that the software has easy access to do "Legal Intercept" (meaning that it's now even in their TOS!)
 
 

 
Jul.04.2011 @ 2:34 AM
wgparham
Was planning on reading the new TOS over the 4th (cuz reading legalese is how I party), but thanks to you I don't have to. Another of the great services provided by AI!

But, yeah... that is one stupidly worded TOS. What the fuck was their legal team thinking. They have to make an update to this or I'm not using DropBox anymore. It's that word "reasonably" that worries me. Their version of reasonable and MY version of reasonable could be VERY far apart. Sure we can hash that out in court, but I don't have the money to dance that legal dance with them. It's a clear case of better safe than sorry.

I like DropBox. It fits in my workflow quite well, but I've also used Linux extensively since Slackware 2.0. I'm not afraid of doing things the hard way. There are other tools and other methods to do what DropBox does. I'll give them a bit of time to send out a reworked TOS, but not a whole lot of time.

Damn... And the interwebs were just getting to the point where they worked for me again...

-William
 
 

 
Jul.04.2011 @ 2:37 AM
rovethegroove
I'll be encrypting my files. I've also sent an email to the legal department of dropbox asking for a clarification. I doubt I'll get a response.
 
 

 
Jul.04.2011 @ 3:13 AM
Chris Randall
I wrote them this morning asking for clarification, on a Sunday, natch, and got a reply within like 20 minutes. It was nearly a boilerplate response, almost copied verbatim from the TOS:

"Dropbox does make any claims on your files. That part of the Terms of Service is mostly for file sharing, picture galleries and public links. This license is solely to enable us to technically administer, display, and operate the Services.

Please read the updated blog entry (scroll down): link [blog.dropbox.co...]

Thank you.

Best,
Kevin
Dropbox"

Note there is a typo in the first sentence (honest mistake, albeit a somewhat ironic one given the context) and a few minutes later I got a correction. So someone actually read my letter and took the time to respond.

I sent a further half a K of extemporaneous rambling (essentially this post, with the pronouns changed) and didn't hear back after that.

-CR
 
 

 
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