Using a social media web site (Ex. Twitter, Facebook and now Google+) is a common place activity for many, but every time a new social media site comes online the same discussions surfaces and the same comments are made about rights grabs, privacy concerns and the need to lock your personal information & photos offline to preserve your ability to protect your work/business. This later concern is one photographers repeat every time a new site comes online and its often backed by erroneous information or a simple lack of understanding of the Terms of Service (ToS) of the new web site.
The Basics
Before I go further it’s important to note that a Terms of Service document is a legal document. To get a definitive take on what a specific Terms of Service document says consult a lawyer. I am not a lawyer and what I’m about to share is based on my personal experience as a web entrepreneur, full-time professional photographer and former corporate web manager. If you’re reading this and you’re a practicing lawyer I welcome your feedback, input and contribution to the information below.
Jockeying for Legal Protection – How Each Party Protects Themselves
Me – As a professional photographer I don’t just think in terms of producing photographs; I think in terms of intellectual property. As such all of my work is filed officially for copyright with the U.S. Library of Congress. (For more on my copyright work-flow see Copyrights: Protecting My Photography or 10 Must Read Copyright Articles for Photographers.) This is important because it helps me protect my creative work to the full letter of the law in the event my work is misappropriated. And by that I mean companies of all sizes will almost always take note of a copyright infringement claim when notified of a formal copyright filing with the U.S. Library of Congress as it can mean real impact to their bottom-line.
Copyright protection helps me gain footing to protect my business and secure future income even when up against a person or company infringing my copyright that might have greater resources or might otherwise chose to ignore a complaint it sees as a non-priority.
Them – Not surprising companies behind social media web sites also think in terms of intellectual property and take necessary steps to protect themselves.
- First and foremost they want to establish that they own the code behind the functionality that makes their site work (ex. site users don’t own how Google+, Twitter or Facebook works or any portion of code behind the sites). This is almost always under a Proprietary Rights and/or general License section of a ToS.
- Secondly they want to establish they hold the right to share submitted information (syndicate information) in such a way that the site functions as expected in regard to sharing content and can be ported to sister web properties or web partners (ex. Tweets can be ported to a blog via a Twitter widget, Tweetdeck or Hootsuite can receive/display your tweets from Twitter, etc.). Social media is about sharing, so syndication is a central function to secure rights for. In general such terms can be found under a Content License section of a ToS.
- Thirdly they want to make sure they are not opening themselves up to lawsuits (ex. liability, privacy or copyright infringement and claims regarding security breaches). To safeguard against such claims “Liability”, “Security” and “Privacy” disclaimers are always present. Copyright & Trademarks are often covered on 3 fronts: End User content (content you own that is shared), 3rd Party Content (content you share owned by others) and Developers (programmers creating new software leveraging an API to port shared content to plugins, apps, etc.) Because of the complexity surrounding copyrighted and trademarked information terms are usually divided between several sections in a ToS document.
If you were to start a social media company these would be your top 3 concerns. Creating a social media web site takes a lot of time, planning and resources. Losing that investment would be catastrophic hence the need for legalese covering the aforementioned concerns.
My Top 4 Factors Dictating Participation on Social Media Web Sites (ex. Google+)
Note: Google+ is used as an example, but could be replaced by any company/site name.
- Is a claim made that the copyright of my work is transferred to Google+ (or company X) upon posting/submission?
- Is a claim made that my copyrighted work will be distributed to sites under a set umbrella of sites and services (ex. Google+, Gmail, Buzz, Google Search, Google Image Search, Google Maps, Google Places, etc.), or far beyond such as a blanket claim to sub-license my shared work to known and unknown companies/services (ex. 3rd party advertisers or image licensing services)?
- Do terms used in relation to any claimed license include “irrevocable”, “perpetual license”, “fully paid”, “royalty-free” or the classic phrase “by all means and in any media now known or hereafter developed”?
Horrible example often absorbed in boiler-plate ToS:You agree to grant to “Company X” a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by e-mail to “Company X” by all means and in any media now known or hereafter developed. You also grant to “Company X” the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against “Company X” for any alleged or actual infringement or misappropriation of any proprietary right in your communications to “Company X”.
- Can the Terms of Service be terminated by myself and not just by Google+?
How Google+ Holds Up to my 4 Factors of Participation
As I read the Google Terms of Service document my 4 Factors of Participation break out as follows:
- Copyright – I retain my copyright and all other rights held to submitted content. (Win!)
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. (for remainder see #3 below)
- Content distribution & claimed rights
11.2 You agree that this license 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.
This is a broad statement, but rights aren’t given to 3rd parties outside of the scope of syndicating content. As stated earlier sharing is a central pillar to social media so I’m OK with this. (OK)
In addition Section 11.3 clarifies an often abused statement “by all means and in any media now known or hereafter developed”. Content will be changed or adapted to meet technical requirements of future networks, to fit future devices, services or media. It’s open ended but makes logical sense to me versus being an extremely vague rights claim. (OK)
11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.
- Use of “Red Flag” terms
11.1 (cont.) By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and exclusive license 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 license 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.
- Yikes Google starts using red flag terms “perpetual”, irrevocable”, and “royalty-free” and “non-exclusive”. To their credit they use “worldwide” and not “universe” which I’ve begun seeing. At first glance I’m turned off by these terms, but I fall back to my entrepreneurial experience from the dot com days and recognize these are terms necessary to use to reproduce content online. Think of this blog post. The title and abstract of its contents can be displayed in Google+, shown on a Google Custom page, in a Google RSS Reader, be translated by Google Translate, repurposed via Google owned Feedburner, appear in Google Search, etc. Each of these services needs to modify the display and length of this posts content. On top of that there is no limit in time-frame to when someone might find a search result for example. (Reluctant OK)
- Google clarifies why the aforementioned red flag terms are employed, but also states these terms may be revoked per the terms of other Google services. This part per my earlier explanation makes sense, but ends in a way that makes me a little nervous as its open ended. (Reluctant OK)
- Termination of Terms of Service
Google outlines in Section 13.1 and 13.2 that you can terminate the ToS and provides a mechanism to do so. (Win)
Keeping an Eye on the Big Picture
Social Media sites can be used in a variety of ways to support personal and business goals. While they’re fun to use I strongly believe they should be used with a goal in mind. Goals for personal use may vary drastically compared to goals for business use. On top of that goals for business use vary as well based on the type of business you run, how you run your business and who your target audience is. My top 4 concerns in evaluating the ToS for a social media site may not be the same as your own, but I personally think they’re a good start in making an early evaluation of a particular service and whether they’re worthy of using.
In my example I’m OK in using Google+. Having read the Google+ ToS I have a better feel of how my content is being used and have identified short comings that might force me to modify my sharing behavior there. Ultimately I find no reason yet to curb my sharing behavior, but as with all new services I’m starting off conservatively to see how Google+ evolves during the closed beta.
Social media is a great tool. As always I recommend approaching it with an open mind and in an educated fashion.
Related Articles:
- TOSBack Terms-of-Use Tracker
- Terms Of (Ab)Use – Electronic Frontier Foundation
- The Clicks That Bind: Ways Users “Agree” to Online Terms of Service – Electronic Frontier Foundation
Update: Google+ ToS from an Attorney
Google user licenses: clarification would be nice, but they’re not panic-worthy
Getty Images Blesses the Google+ ToS for its Flickr Collection Contributors
Getty Images has responded to inquiries that posting images on Google+ does not violate the terms of Flickr Getty Contributor contracts.
If you’re a Getty Flickr contributor you can view this private link with specific details
Google+ Not Part of Google Display Network (Ad Network)
Google representative states “Google+ is not part of the Google Display Network” in this wired article Google+ vs. Facebook on Privacy: + Ahead On Points — For Now
[tags]Social Media, Terms of Service, Terms of Use, ToS, ToU, Google+, Photography, photo, professional, Google, copyright[/tags]
You shouldn’t be reluctant OK or anything OK with 11.1. It literally nullifies the other statements. Yeah, I can hope that Google sees it’s oppressive, unpopular, etc – and that it seems to be contradictory to other parts of the ToS – maybe an error. But it’s there, and it’s not going to allow you to protect your rights to your photos.
Great write up, Jim. I know I’m not the only one that will appreciate your input and take on the subject.
Excellent post… a well researched and reasoned analysis. Thanks much.
But Jim, a rational look at the Google terms just doesn’t gather as much traffic (and a Washington Post citation) as a knee-jerk rant about the evils of the Internet…
Sadly true. I actually thought Google did a good job in making the ToS easy to understand and was well organized. Legalese is ultimately legalese though so its not a stretch that some might get lost on some of the key areas I pointed out. None the less the sky is falling approach for something so benign really seems out of place.
Thanks Blake. Glad you found the article helpful.
Thanks Justin. I hope the article is helpful to many. Also thanks for the plug on your Google+ discussion
I don’t see 11.1 jeopardizing the rights to my photos. I am the copyright holder and they’re license is for syndication. If another Google service is available that I disagree with the ToS then I don’t opt in to it. Some services may use the data differently and have terms that supersede Google+. For the sake of argument Google Search could be an example of where data syndication might be very different than Google+ resulting in different terms of use.
Taking a step back from it all… you control what you share on Google+. A small watermarked image is hardly a risk to share on Google+. If the terms weird you out then abstaining from posting pictures can be remedied by only sharing links to photos on another site. That is what I do on Facebook.
Thanks for the comment.
Jim, great article, and very practical advice the photographers of all skill levels can put to use. I like the step by step analysis of the goggle+ license showing how to apply the information. Thanks for doing this.
Great! Thanks for explaining all the legalese that tends to just confuse me. As a former photographer myself I tend to pay a little more attention to copyright than the average user, even though a lot of this can affect the average person just as much.
I wonder how you feel about Facebook’s tendency to use uploaded photos in ads (I would consider it commercial use when a photo of a user is used along with an ad suggesting I would enjoy some app also)?I feel there is a big difference between a user posting a portrait online vs. say, a mulitmillion dollar company like Zynga using it to push their games.
Thank the heavens, I finally see a sane response to the TOS. Beautiful explanation, sir.
Hey Jim,
good break down. I just wonder about this section:
” 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”
Does that not include all advertisers and all websites showing google ads as well? These have “relationships” with Google and therefore Google can serve your content in their ads to any website showing them? or am I seeing this wrong?
I wrote 2 lengthy articles about FB’s terms for photographers, see http://blog.exposedplanet.com
I am sure some of the commenters here will accuse me of being irrational and traffic seeking but I rather be safe than sorry, but wonder what your take is on that.
Cheers, Harry
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Your argument works well for me, but only for material that I intentionally post to Google+ as “public.” When I post something to a limited group of friends, I specifically do not mean to “give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit…”If I post something to a limited group, I expect Google to respect the limitations I set, and further, to allow me to revoke Google’s rights to my material by deleting the material.
Joe the terms set forth by Google do not discriminate between public and private. Anything that is placed on a Google server falls under these terms. The license of your content is covered in the broadest sense to allow Google to operate the service. As part of that service you have the ability to limit the scope of its visibility. In other words Private and Public designations fall under the larger umbrella of the service offered.
Harry to date Google has not used user content in their ads. Google Adwords is a text based service. They do allow the use of banners, but images in the banners are not tied to user content. Facebook advertisers/developers in the past have done this, but have been quickly admonished or banned. (That being said it doesn’t make me trust Facebook any more than before.).
I discussed the Google+ ToS license here because many people are confusing the language needed to truncate, publish and allow users to share content in the Google+ system with nefarious purposes that are unfounded. Google has numerous sites/services and to enable a closer integration of those services needs to have the language quoted above.
I disagree with the points you’re making in your articles. Sharing on Facebook, Twitter and Google+ are good for photographers. It assists in surfacing your work to other people in a way that was previously impossible, difficult or costly. Understanding the nature of the legalese is important. Google’s terms are actually among the best I’ve seen unlike the early terms of Facebook.
Ultimately if you’re uncomfortable sharing work on social media sites then its best not to. It’s not for everyone, but you are sacrificing opportunities. Before sacrificing those opportunities be sure you’re understanding the ToS to best of your ability.
Oh and I should note you can share work on these sites without uploading photos. I don’t upload photos to Facebook, but I link to site that contain my photos that I trust. There are pros and cons to this as well.
Thanks Emily!
Thanks Jim. I’m not sure how your response addresses my concern though. The TOS says that google has the right to make everything public. If I post something as private, I am explicitly telling google that they do not have that right with that particular post. I would rather see this TOS clause with the qualification that Google will abide by the visibility constraints I assign. The clause seems to say that they don’t have to abide by my visibility constraints. Do you see something different? (BTW, I’m a software architect with expertise in discretionary access control. I understand that google cannot provide transmission security for resources I post. They can however provide access security to my resources.)
Hi Jim, thanks for your reply. I agree that everybody should make up their own mind, so articles like yours (and hopefully mine) are useful.
That said, search for ‘Scamville’ and see if you trust FB with anything..
Anyway, I think that Google is not after my images, their threat is to privacy. They already read your email, what files you have on your home computer, know what you search and browse for and now they want to know who are your friends. I might pass 🙂
Check the terms of 500px.com, a service that should need more rights to do what they do than Google or FB, but they have limited themselves to what is needed instead, which is a very welcome change to all the rights grabbing:
”
By uploading your photographic or graphic works to 500px you retain full rights that you had prior to uploading. We will do our best at protecting copyright, see next section for details.
By submitting photographic or graphic works to 500px at upload
page to your profile you agree that this content fully or partially may
be used on 500px web-site for promotional reasons (such as photos at home page). By doing so, 500px will comply with the Canadian Copyright Act,
which means your work will be properly attributed or quoted. No
photographic content, emails, and other private information will be sold
for any reasons by 500px.
Your photos will preserve whatever copyright
they had before uploading to this site. We will protect the copyright
and will not sell your photos.
”
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Still can’t post nudity. So why even sign up?
11.3 says “may” not “will” (a) transmit or distribute your Content over various public networks and in various media;”. Best bet is to either consult an attorney or refrain from using the site if its a serious enough concern. Clearly their intention is to honor privacy settings as they’ve gone to great lengths to create the Circle system to do just that.
Lawyers work in the most general terms possible. I understand your concern, but I think you may be looking for a narrower definition that may not be needed. I’d have to check the Facebook ToS to see if they call it out any differently.
I have never found Facebook to be trust worthy myself hence my lack of posting photos there. I link to other sites hosting my photos. In the big picture do I think they’d do anything super bad likely not, but I feel more comfortable hosting my images elsewhere. Facebook likes to push the envelope of what they can get away with. Thats not in my comfort zone.
That being said Facebook and Google are very different than 500px. 500px is one dimensional by comparison. Google and Facebook are launching multiple services and this is why they word their terms of service as they do. Both Facebook and Google will be implementing greater integration between their services.
I have never found Facebook to be trust worthy myself hence my lack of posting photos there. I link to other sites hosting my photos. In the big picture do I think they’d do anything super bad likely not, but I feel more comfortable hosting my images elsewhere. Facebook likes to push the envelope of what they can get away with. Thats not in my comfort zone.
That being said Facebook and Google are very different than 500px. 500px is one dimensional by comparison. Google and Facebook are launching multiple services and this is why they word their terms of service as they do. Both Facebook and Google will be implementing greater integration between their services.
Thanks Wren. Glad the info was of help.
Thanks Wren. Glad the info was of help.
To be devils advocate… you could surf G+ in the nude. Perhaps not the way you were thinking it might work best though.
To be devils advocate… you could surf G+ in the nude. Perhaps not the way you were thinking it might work best though.
Thanks for this explanation! I like it when people write thinks in a rational way!
Succinctly put, here is what is wrong with this TOS. If you do not like whatever Google ends up doing with your content, per TOS paragraph 11.1 (irrevocable license), you do not have the right to tell Google to stop using your content.
It makes sense to me that no matter what Google plans to do with your content, they need a CYA TOS that allows them to intentionally or accidentally do anything. However, if they start showing photos of your children to the world or search engine indexing all your chatter about your children, you’re going to want the ability to stop this by removing your photos or deleting that chatter. Google may give us the ability to do this, but the TOS says they don’t have to.
Giving me the ability to get out is the only thing that gives me permission to participate in the first place. No matter what any TOS says, we are in the position of trusting the service to do the right thing. This TOS says that once you trust Google with a piece of content, you can never change your mind. That’s a lot of trust to ask going in.
That is the Internet for you beyond Google+.
Section 13.1 and 13.2 as noted above does provide an opportunity to terminate the ToS.
You should check out http://www.bagandbaggage.com/blog/2011/7/10/google-user-licenses-clarification-would-be-nice-but-theyre.html
I just added this to the post. Its an evaluation of the ToS by an attorney. Worth directing your specific concerns there.
I think saying, “That is the Internet for you beyond Google+,” confuses technical possibility with legal possibility. I still control all rights to anything I post on my own web site, and I can use the courts to have other people’s uses of my material removed. Google+ is saying that you lose that right — Google need not allow you to remove the material even if you don’t like what they’re doing.
As noted in the article you reference at Bag and Baggage (thank you!), section 13 does not apply to material you’ve already posted. The right remains irrevocable once granted. Read 13.5 in particular.
The Bag and Baggage post mentions the concern about irrevocability. Thanks for that link!
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A very well written text! Thank you for sharing. Would you mind if I shared this text with my collegues too, come August, as a starting point for our discussions about issues such as the ones you address here?
while I understand the general purpose usage desired by social networking, around the terms – that doesn’t mean that that’s all the rights you are giving them – Twitpic proved that…
Morrica yes feel free to share this with your colleagues. If you use specific portions verbatim please provide citation to me and my blog. Glad this was of interest and helpful. Thanks for your comment.
Twitpic included much broader rights claims. They were sublicensing out the content you provided to generate revenue off of your images. That is quite different than the terms outlined by Google.
There is a bare-bones minimum of licensing you need to grant a social media web site to share and receive content of others. While its a matter of interpretation what that bare-minimum is there is something that has to be licensed. Google’s terms if you compare them to equivalents (Facebook, Yahoo, etc.) is as good as they come. They surely could benefit from refinement no doubt, but its a great start so far and far from the scary hype created by others.
Thanks Cor. I’m glad the write up was helpful to you
I’m lost as to why it needs to be perpetual and irrevocable. It would seem to me that if I delete an image, they no longer need those rights to be able to operate their service on the photo in question, because they’re not going to be display again. I think they can reasonably allow themselves a bit of time for the deletion to propagate through their system, it doesn’t need to be perpetual or irrevocable that I can tell.
Thank you very much!
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There’s an old adage that always makes me chuckle, “Once someone pees in the pool there’s no getting it out.” This less than tasteful saying is true of the Internet as well. Once you post content online in a social media site it is shared and is replicated across multiple accounts. While it might be possible to remove a piece of content like a photo from your account if it has been shared 1 time or 1,000,000 times there is no pulling it back. As I understand it this is the reason the license needs to be perpetual and irrevocable.
I was attempting to inject a little light heartedness in the discussion by saying “That is the Internet for you…”
While you do have control over content on your web site you also have unknowingly granted some perpetual and royalty free rights to Google and other search engines with out even entering into agreement on their ToU. Courts have repeatedly protected search engines ability to encapsulate descriptions of content and even use thumbnails of images.
The reason for pointing this out is their is both benefit and cost to being online. Facebook doesn’t remove your content rather it disables your account. I would imagine Google may do something similar.
Also I might add that Google+ is not saying that you lose the right. By using their service you’re making an exchange. Receiving the benefit of using the service to syndicate your content in exchange for allowing Google to host it as long as necessary based on the sharing patterns of your network private or public.
I’m not sure anyone or any company can guarantee that something on the Internet can be completely removed. On some level shared content can escape the confines of even the most elaborate privacy settings not because the system is flawed, but because people are hell bent on making content available. I’m not condoning it, but that’s what happens.
Sorry, I missed your light-hearted comment!
I was concerned with posts intended to be private, that are not otherwise accessible to search engines. I’ve been doing some experimenting with Google+ security. When you post something as public, Google+ actually makes it visible to anyone, including people not logged into Google+. When you post something as private, it is only visible to Google+ members with whom it has been “shared.” I’m now testing the persistence of these constraints across multiple shares.
In any case, my impression now is that Google+ allows anyone to redeclare the visibility scope of anything already visible to them, possibly unless the author turns off sharing for the post (still testing that). This is practically an all-posts-are-public-by-default policy. That’s pretty scary, but also pretty neat. It makes Google+ different from Facebook in that regard, and I’ll find myself treating Google+ as a platform more like Twitter than like Facebook.
When posts are public, should Google+ provide APIs as Twitter does for accessing posts, then posts could easily be replicated **outside of Google+** once posted to Google+, so it’s good to assume that you can’t delete the post. Google, however, always has the option to delete a post, should they choose to design the software that way (I’m a software architect).
Meant to also say that I appreciate your efforts to tone down the negative hype that surrounds these TOS’s. However, I’m inclined to think that most of these TOS’s are indeed dangerous and you have to be very careful with them, especially if the TOS pertains to the non-paying “customers.” They may be dangerous, but the services are still worth it, if you keep the TOS in the back of your mind for everything you do.
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Jim, thank you for this explanations about the TOS! Allthough I think the whole fuzz about it was a bit of overreacted. This kind of TOS (as you state, too) have been around a while and can be found almost everywhere in the Social Media and at the end it´s up to you to balance the advantages or disadvantages you get from being a part of Social Media. But what I think is the most important lesson of all this discussion is to sensibilize the people about Rights and Intelectual Property. I think you have done a very good job towards this 🙂
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