37 posts categorized "Terms of Service"

Feedback's ownership loop

Interesting feedback from @joshblake on App.net yesterday about App.net's written Developer Terms.

Go here to see the actual thread in which Blake framed the problem and the discussion that ensued. Here's how you might express the issue in the form of a question: how can App.net, with a straight face, ask independent developers for feedback, while at the same time insisting that App.net own any such feedback?

FeedbackAny service provider with ambitions to become a platform will of course relish feedback, especially when that user is an accomplished outside developer who understands how the service works, technically, and who puts effort and imagination into fusing new applications onto the service.

That service provider will naturally covet the unrestricted ability to make use of feedback.

App.net took a wrong turn by publishing an overreaching covenant about developer feedback. Here's what it says, or said, in a version dated September 26, 2012:

Feedback

We love feedback. Please let us know what you think of the API, these Developer Terms and, in general, App.net. When you provide us with any feedback, comments or suggestions about the API, these Developer Terms and, in general, App.net, you irrevocably assign to us all of your right, title and interest in and to your feedback, comments and suggestions.

Blake opened an issue on GitHub for further discussion.

The right approach here is probably a license, rather than an assignment, from the developer.

Here's a suggested draft of a substitute feedback provision, using license language and already carrying the benefit of Blake's feedback:

Feedback

We love feedback. Please let us know what you think of the API, these Developer Terms and, in general, App.net. When you provide us with any feedback, comments or suggestions (collectively, "Feedback") about the API, these Developer Terms and, in general, App.net, you grant to us, under any right, title or interest you may have in and to such Feedback, a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use that Feedback or to incorporate it into the API, these Developer Terms, or any of App.net's products or services.

Image: Sune Petersen / Flickr.

Another reason to push App.net posts to Twitter, rather than vice versa

When I first figured out that IFTTT would enable you to post simultaneously to Twitter and App.net with a single effort, I somehow assumed that Twitter would originate and App.net would echo.

IFTTTtthena

That was silly of me. A prejudice of muscle memory, or emotional co-dependency. (Now, there is actually one practical reason to, if you're planning on parallel posting, post to Twitter first: Twitter has a 140 character limit, whereas App.net permits 256 characters. Go with the lowest common denominator, one might rationally say, so your posts on one medium are not truncated.)

But I soon self corrected and set up an IFTTT recipe where my ADN (App.net) post became the "trigger" to push said content to Twitter.

IFTTTathent

Now there's an official Twitter reason to give app.net primacy.

This explanation from an email I received yesterday from IFTTT:

"In recent weeks, Twitter announced policy changes that will affect how applications and users like yourself can interact with Twitter's data. As a result of these changes, on September 27th we will be removing all Twitter Triggers, disabling your ability to push tweets to places like email, Evernote and Facebook. All Personal and Shared Recipes using a Twitter Trigger will also be removed. Recipes using Twitter Actions and your ability to post new tweets via IFTTT will continue to work just fine."

In short, Twitter is leaving users with no choice. You may own your tweets, but Twitter seems to own their embodiment in that medium.

Is Twitter trying to give App.net a boost? :)

Why It's Important for Kickstarter to Not Overreact to Failure

I admire Kickstarter. Its success to date raises the bar for what web-enabled networking should aspire to accomplish. When you consider the mendacity of Facebook, Klout and all those who would twist potential means of empowerment into affiliate marketing, you have to hope that Kickstarter, Etsy and more like them will continue to succeed.

Satsifaction guaranteedGood for Kickstarter, too, for confronting the question raised by NPR reporter Aarti Shahini: when a Kickstarter project fails, do backers get their money back?

But I think Kickstarter is overreacting.

Walk with me through the following question and answer, one of the new FAQs posted by Kickstarter this week under an "Accountability" header:

"What should creators do if they're having problems completing their project?

"If problems come up, creators are expected to post a Project Update (which is emailed to all backers) explaining the situation. Sharing the story, speed bumps and all, is crucial. Most backers support projects because they want to see something happen and they'd like to be a part of it. Creators who are honest and transparent will usually find backers to be understanding.

"It's not uncommon for things to take longer than expected. Sometimes the execution of the project proves more difficult than the creator had anticipated. If a creator is making a good faith effort to complete their project and is transparent about it, backers should do their best to be patient and understanding while demanding continued accountability from the creator.

"If the problems are severe enough that the creator can't fulfill their project, creators need to find a resolution. Steps could include offering refunds, detailing exactly how funds were used, and other actions to satisfy backers."

Substitute "founder" for "creator" and "angel investor" for "backer," and all but the last paragraph might be used, verbatim, by a startup mentor, experienced angel investor, board director or seasoned lawyer in coaching a startup founder on best practices for dealing with investors.

The third paragraph, that's where Kickstarter takes a wrong turn. You would never make such a broad, open promise in an equity financing context (crowdfunding or otherwise).

You wouldn't tell the investors they would get a refund.

You wouldn't do it because you then implicitly de-legitimatize the possibility of failure.

It may be that the guarantee of delivery that Kickstarter - meaning well, of course - wants creators to promise is reasonable when projects don't involve hardware, software or feats of cutting edge engineering. If you promise a t-shirt, surely you can deliver a t-shirt.

But some projects are as ambitious as those undertaken by startup companies seeking seed financing from angels. The possiblity that they may fail is part of what makes the projects worth attempting. Assuming backers knew the risks, shouldn't backers share in responsibility for failure, too, to the extent of their investment?

Some points for Kickstarter to consider, as alternatives to the well-meant but unworkable approach they've announced this week:

  • Further bifurcate cottage-industry art projects (films, albums, performances) from design and software projects and continue to curate different standards for the inherently different risk profiles.
  • Limit the amount of money that can be raised, either in the aggregate, or per backer (this would be to take a page from the equity crowdfunding model, arguably).
  • Double-down on reputational stakes – score the reputation of someone coming back to Kickstarter a second time.
  • Develop a process for creators to distinguish between promises that should not be broken - access to the creative team, a musical recording, a t-shirt - with ambitious targets that may not be met. Anything reasonably in the category of the aspirational / contingent / subject to factors outside our knowledge or control, those should be identified as subject to risk of non-delivery or to failure.

See also Shahini's follow up blog post. Yours truly is quoted in the post to the same effect as the above.

Sticker from http://www.vectorportal.com/.

Independent Twitter developers and "detrimental reliance"

I've been exchanging DMs with some of my lawyer friends on Twitter, musing over the question: might Twitter's community of independent developers have any legal recourse when Twitter unilaterally changes rules, rules on which many developers have built services?

Some of these services, built on top of Twitter, are businesses in their own right.

The informal lawyer colloquy gets to the same place that the development community arrived at last month: *don't* build a business predicated on Twitter's API terms staying the same. I can recall Fred Willson blogging warnings to the same effect months ago, years perhaps. :/

BackoffruittruckBut let's go ahead and let the air out of the balloon by talking just a bit about the legal theory that might have been the most promising. It is a kind of breach-of-contract theory, though it might be fairer to characterize the theory as something the common law has imposed over the years when contract law fails, or when there isn't actually a contract or contractual language to support the claims of someone that we intuitively feel has been wronged.

Suffice it to say: you don't always have to have a written contract in order to obtain legal relief for something that feels like breach of contract.

If I tell you, "bring your produce to my fair, it's important that your goods are there, I will advertise the fact and sell tickets based on you being there, and you can use the refrigerated warehouse to store things," you might rent a truck, haul your produce across the mountains, and bear the risk that you might not sell enough nectarines to make the venture profitable.

What you won't expect, however, is for the fair proprietor to lock the gate as you pull up, and, as you roll down your window, hand you a flyer which reads: "we've decided to focus on funnel cakes, scones and deep fried candy bars at the fair this year; independent produce no longer welcome."

Final, critical piece of this hypothetical: you don't have a written contract.

As you drive back over the mountains, temperatures soaring, fruit getting overripe in the container, do you have any legal recourse?

I think you probably do! You relied on the fair proprietor's promises to your detriment. It is reasonable to think the fair promoter would have expected you to rely on those promises, and to act on them, and to spend money to get your fruit to the fair.

Change the hypothetical in this respect: the promoter is indeed permitting fruit to be sold at the fair, but, at the last minute, he accepts sponsorship dollars from a big grocery chain that demands that only its processed, dried fruits, and a smattering of poor quality fruit flown in from out of state, be sold at the fair. There is some small controversy from a consumer advocacy group that objects to the fair advertising that promises "local organic produce."

I think your chances of getting, as damages, the full expectancy of whatever profits you would have made, had the promoter kept his promise, now go way up. (Though you still have the issue of how to measure those profits, and you may still have some duty to find a supermarket or distributor on the way home to whom you can unload your fruit, to mitigate your damages.)

The situation for Twitter's independent developers both is and is not like the above hypothetical.

It is *like* the hypothetical, insofar as Twitter encouraged independent developers to build on its platform. What I just said is an assertion of fact, which, in court, may entail marshaling evidence. But Twitter would make this process easier by the following statement in its Developer Rules of the Road:

"We want to empower our ecosystem partners to build valuable businesses around the information flowing through Twitter."

That's like the fair promoter saying, "come on over and sell your nectarines!"

But the situation for Twitter's independent developers is *not like* the above hypothetical in a most critical respect. Twitter's rules also clearly say:

"Twitter may update or modify the Twitter API, Rules, and other terms and conditions, including the Display Guidelines, from time to time its sole discretion by posting the changes on this site or by otherwise notifying you (such notice may be via email). You acknowledge that these updates and modifications may adversely affect how your Service accesses or communicates with the Twitter API. If any change is unacceptable to you, your only recourse is to terminate this agreement by ceasing all use of the Twitter API and Twitter Content. Your continued access or use of the Twitter API or any Twitter Content will constitute binding acceptance of the change."

That muddies up the reasonableness of your reliance. That shifts the focus to you, the reasonableness of your persistence, the path you took in the face of an unequivocal warning.

It's as if the fair promoter had said, "Yeah, we do have a community group that wants fresh fruit at the fair. Tell you what, head over, I'll see what I can do to make space. But look, no promises. I have a deal with a big food distributor and they may not want you there. We'll see if we can slip you in the back unnoticed, at least for the first few days."

Photo by Karen / Flickr.

Twitter Information Sharing and Disclosure

Twitter has recently revised its terms of service and privacy policy again.

I haven't had the time to prepare thorough redlines to surface all of the changes, but I did make a quick peek comparison of a section of Twitter's privacy policy, titled, "Information Sharing and Disclosure." Here's that comparison, 17 May 2012 laid over 23 June 2011:

Screen shot 2012-05-24 at 10.31.14 PM

Twitter's growing up. I like how they are ditching some of the earlier, gratuitous euphemisms (a/k/a, the earnest bullshit) that marks a young company speaking to its self-perception rather than describing reality. The example of that evolution at work here is in how "certain trusted parties" is struck in favor of the matter-of-fact "service providers." It adds credibility.

Not only do changes like that add credibility; they foreground all the more effectively the more surprising changes that mark affirmative decisions to stand by users against the Man. To whit:

"[N]othing in this Privacy Policy is intended to limit any legal defenses or objections that you may have to a third party’s, including a government’s, request to disclose your information."

That sentence is new, it's substantive, it's not expressed in a self-aggrandizing way, and it's meaningful. Twitter is talking after walking, too; I imagine this particular change expresses a policy the company worked out in the course of opposing the New York judge in the recent standing case that Ziff and I blogged about.

Is this (the U.S.) a great country or what? In Europe or elsewhere, I can't help but imagine, a regulator would be involved, and companies wouldn't naturally assume they had the right to change the rules.

Standing up for user generated content

High stakes reading of Twitter's terms of service in the New York court proceeding that has been getting a ton of attention.

I haven't followed all of the issues and arguments presented, but a key procedural point appears to turn on just how much control a Twitter user has over her tweets.

The procedural point is whether the Twitter user, whose tweets are at issue, has "standing" to intervene in New York State's efforts to get copies of his #OWS (and possibly other) tweets directly from Twitter.

Stand your ground

"Standing" is a legal doctrine that has to do with who may and may not show up and have a voice either in a particular lawsuit or in a discrete legal proceeding. To make up a very rough example, suppose John and Sally from Atlanta file for divorce in a Georgia court. The Pope in Rome hears about this. Believing in the sanctity of marriage, the Pope flies to Georgia, attempts to file a motion with the court to deny the divorce, and while he's at it asks the court to subpoena the local office of Planned Parenthood to obtain records of birth control dispensed to John and Sally. Because the Pope's interest in John and Sally's personal lives is so attenuated, he lacks "standing." Consequently, the court needn't pay any attention at all to the Pope in the matter.

While, in the hypothetical above, it is clear that an interloper should not be able to slow the wheels of legal process down, sometimes rulings about "standing" are counter-intuitive. "Standing" rulings can seem downright crazy when persons with obvious interests at stake are told the doors to the court are closed.

The New York proceeding gives us a "standing" ruling in the latter category. How could a Tweeter not have standing in a case that was all about access to his own tweets?

Well, in addressing that question, the judge in the case cited Twitter's terms of service, which give Twitter very broad rights to use every tweet posted to Twitter. "Every single time the defendant used Twitter’s services," the judge wrote, "the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have."

The judge continued, "Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets." Ergo, no standing for the defendant to challenge New York State's attempts to obtain the defendant's tweets directly from Twitter.

Why I find this so interesting is that, in response, Twitter takes a fairly unequivocal and highly public position about ownership and control of user generated content.

Here's part of what Twitter says to the court (citations omitted):

"Twitter’s Terms of Service make absolutely clear that its users own their content. The Terms of Service expressly state: 'You retain your rights to any Content you submit, post or display on or through the Services.' See Terms of Service (available at http://twitter.com/tos). Twitter users neither transfer nor lose their proprietary interest in their content by granting a license to Twitter to provide the services. Moreover, unlike bank records, the content that Twitter users create and submit to Twitter are clearly a form of electronic communication that, accordingly, implicates First Amendment protections . . . ."

Now, as a Twitter user, I have to say, I like that argument and the use of the word "proprietary."

To me, it suggests that Twitter will have to check with you before it starts using your tweets and your likeness in the way Facebook exploits user posts and personal attributes to promote branded products. The argument Twitter is making to the New York court suggests that, broad though Twitter's public publication right may be, you as a Twitter user can pull back, take ownership of, assert control over, even limit, what Twitter may do with your tweets.

Photo: "stand your ground" by akshay moon / Flickr.

Drafting

One of the pleasures of redlining is that you can map a tour of changes made in a landscape of text.

I haven't yet had a chance to read Google's overhauled privacy policy. The changes look to be so substantial, it may be difficult for a redline to throw discrete instances of wordsmithing into relief.

That said, here is a small section of the anticipated Google privacy policy, marked against the version to be replaced. This passage, at least, does yield the experience only a redline will afford.

Screen shot 2012-01-25 at 10.26.20 PM

I don't have time this morning to fully narrate a tour. I'll just call out three highlights:

  • The implication that Google's security efforts will meet a certain industry or societal standard ("appropriate") is elided if not entirely replaced with the promise that Google will "work hard."
  •  Google itself is added as a beneficiary of its security efforts.
  • "Google employees, contractors and agents" go from working on Google's "behalf," to working "for" Google. This I think introduces the possibility of agency, or a degree of it, for which Google itself may not be responsible.
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