Friday, March 28, 2014

What should agencies do when online services change their terms of use?

Governments around the world now rely on social media services to reach and engage citizens, disseminate information, to monitor what people are saying and source intelligence to help address crises.

Many businesses also rely on digital channels for revenue and engagement reasons.

So what happens when an online service that an organisation uses updates its terms and conditions in a way that gives them rights that are uncomfortable for an agency or business - such as when a service claims ownership over anything published on its service, or takes an unlimited right to people's personal information?

Organisations can choose to stop using such a service, however it can be difficult to do so.

Firstly the practicalities of removing all the legacy data you've saved on the service - be it posts, presentations or documents - can be tricky. Some services may not even allow you to delete, or keep copies in the background.

Secondly organisations will need to find another place - an acceptable place - to put all the content they removed - noting that they may have to move again if a second service changes its terms.

Thirdly there's the issue of abandoning the organisation's community. Both the people who were already using the service and used it to interact with the organisation and the people who joined the service specifically to interact with the organisation. How does the organisation access them if it's not using the service anymore?

If you think this is just a theoretical exercise, sorry - we've seen this type of issue before, when online services have modified their terms and faced a huge backlash from their users.

And I think we're about to see it again with the release of the new LinkedIn and Slideshare terms.

LinkedIn recently changed the Terms of Use for all of its properties (including SlideShare which they own) to state, in part (bold italics are mine):

2.2. License and warranty for your submissions to LinkedIn 
You still own what you own, but you grant us a license to the content and/or information you provide us. As between you and LinkedIn, you own the content and information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users.
Additionally, you grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including, but not limited to, any user generated content, ideas, concepts, techniques and/or data to the services, you submit to LinkedIn, without any further consent, notice and/or compensation to you or to any third parties.

What does this mean in plain English?

The first bit sounds OK "You still own what you own, but you grant us a license to the content and/or information you provide us." That's pretty standard for an online service. They need a license to publish the material online on my behalf, so no problems there.

However when an oganisation says that I am granting them "a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right", red flags start to fly.

Anything that is irrevocable, global, perpetual and free is potentially likely to cause issues at some point down the track - but the term by its wording removes any ability to retract that right, such as by deleting a file or discontinuing my account.

The next part is even worse - the right LinkedIn and Slideshare is taking (on an irrevocable, worldwide basis) is to not only display my presentations or information, but to "copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize,  in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn".

In other words, I may own the original work, but LinkedIn can make a derivative work, publish it and then charge people for it and I can't do a thing about it. Suddenly any slides I've put up on Slideshare with useful data becomes a revenue stream for them - and I lost my recourse by publishing it on their service, even if I did so before they changed their terms.

Not only this, but they don't only get the right to take my slides, delete a few and sell the rest, they can also turn them into any any format and monetise them as well. If I told a good story in a slideshow, LinkedIn could publish it as a book, if I published a slide with the design for a cold fusion reactor, LinkedIn could build the reactor and sell it - paying me nothing in return.

Now that's scary - but it even gets worse... "including, but not limited to, any user generated content, ideas, concepts, techniques and/or data to the services"

So if I publish a presentation about my new start up concept to Slideshare, now LinkedIn can take my concept or technique and use it themselves, royalty-free, in any way they see fit.

And they never have to compensate me, or even tell me that they've done it (per "without any further consent, notice and/or compensation to you or to any third parties.")


Any organisation with intellectual property or data should carefully consider whether they're prepared to continue to use Slideshare or LinkedIn to publish information about their services, products, potential products or data - because simply by publishing it in one of these platforms, LinkedIn takes ownership.

Even worse, as their new terms came into force when they were published, anything you've already published on these platforms is now theirs.

I'm going to be far more careful about how I use Slideshare and LinkedIn in future - and will be advising the organisations I work with to similarly think carefully before they publish anything on these channels.

Any government agency or business who wants to retain control over their own content - including whether it can be copied, restructured and sold by an online service - should now be very careful about publishing in either LinkedIn or Slideshare.

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