“Free” as in “we own your IP”(brendangregg.com)
brendangregg.com
“Free” as in “we own your IP”
http://www.brendangregg.com/blog/2014-05-17/free-as-in-we-own-your-ip.html
7 comments
The term you're looking for is "contracts of adhesion," and yes, courts do acknowledge the potential for unfair treatment there. (That isn't to say that they'd strike this particular clause — just that they do recognize and account for the power inequality inherent in this kind of contract.)
I'm not sure I understand what the fuss is all about. The language is included to avoid a situation where a user suggests an idea (that may or may not have already been planned / considered / in development), and then wants to get paid when the feature is eventually released. Seems perfectly reasonable to me.
He has a problem with the transfer of IP.
He quotes a ToS clause from another company with grants a perpetual free license to your idea, which he has no problem with.
With the "transfer-style" clause you could submit an idea, an then be sued if you use your own idea yourself. That indeed seems strange.
With the "transfer-style" clause you could submit an idea, an then be sued if you use your own idea yourself. That indeed seems strange.
As written, if you suggest something, it seems to me that they'd own the idea - and you wouldn't be able to use them yourself.
'... all right, title and interest in and to ... including all associated IP Rights...'
While it may be intended to protect them, that's hardly justification for such a sweeping transfer. Less total licensing could have been worked out.
Indeed - there's an example of such in the article:
'... shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information...'
'... all right, title and interest in and to ... including all associated IP Rights...'
While it may be intended to protect them, that's hardly justification for such a sweeping transfer. Less total licensing could have been worked out.
Indeed - there's an example of such in the article:
'... shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information...'
You can easily solve that problem by claiming some sort of non-exclusive licence without claiming the underlying IP. Web sites built around user-generated content do this all the time, for example.
Attempting to grab the IP itself is either careless drafting or a hostile act. Either way it looks bad for the company doing it.
Attempting to grab the IP itself is either careless drafting or a hostile act. Either way it looks bad for the company doing it.
FYI, it looks like it's Datadog.
https://github.com/DataDog/dd-agent/blob/master/packaging/da...
https://github.com/DataDog/dd-agent/blob/master/packaging/da...
With line anchor: https://github.com/DataDog/dd-agent/blob/master/packaging/da....
Permalink in case they change it: https://github.com/DataDog/dd-agent/blob/f911dd8955dd13aae1d...
Are there any resources for startups looking for a set of sane, standard T&Cs without forking out for a lawyer?
You can freely copy pretty much anyone's as legal documents are not covered by copyright.
However, the problem there is that doing so may result you not having the protection you believe that the documents offer you. The false sense of security is now worse than just not having documents as you probably won't do anything to fix it and won't be aware of the risk.
We've put our legal docs online: https://github.com/microcosm-cc/legal
Copy them if you want.
They are for discussion forums, a community CMS service. Broadly they consider a site admin to be the owner of a database/collective work and has database rights, that an individual owns their content but grants a right to the site admin to include that content in the database/collective work into the future. They allow the end user to request deletion of their profile (but acknowledges the data that forms part of the collaborative work will remain). And they dissolve the platform of any liability arising from the content. They place some obligations on the site admin to reactively moderate and handle reported/flagged content within some reasonable (24-48 hours) amount of time, and includes a policy of automatic escalation and content removal (from public view) for flagged content that isn't handled by a site admin. It allows for monetisation via charging for services or referral fees.
However, the problem there is that doing so may result you not having the protection you believe that the documents offer you. The false sense of security is now worse than just not having documents as you probably won't do anything to fix it and won't be aware of the risk.
We've put our legal docs online: https://github.com/microcosm-cc/legal
Copy them if you want.
They are for discussion forums, a community CMS service. Broadly they consider a site admin to be the owner of a database/collective work and has database rights, that an individual owns their content but grants a right to the site admin to include that content in the database/collective work into the future. They allow the end user to request deletion of their profile (but acknowledges the data that forms part of the collaborative work will remain). And they dissolve the platform of any liability arising from the content. They place some obligations on the site admin to reactively moderate and handle reported/flagged content within some reasonable (24-48 hours) amount of time, and includes a policy of automatic escalation and content removal (from public view) for flagged content that isn't handled by a site admin. It allows for monetisation via charging for services or referral fees.
> You can freely copy pretty much anyone's as legal documents are not covered by copyright.
Can you really? Any reference?
Personal answer: No, copying TOS for your own website infringes their lawyer's copyright. "Documents written by a lawyer are protected by copyright as much as the work of any other writer"[1]
In the next season: Can we patent a particular way of protecting your website's legal rights ;) ? That would be great fun. We should patent the cease-and-desist letters, unfortunately there is far too much prior art on those...
[1] http://www2.mnbar.org/benchandbar/2007/apr07/drafting.htm
Can you really? Any reference?
Personal answer: No, copying TOS for your own website infringes their lawyer's copyright. "Documents written by a lawyer are protected by copyright as much as the work of any other writer"[1]
In the next season: Can we patent a particular way of protecting your website's legal rights ;) ? That would be great fun. We should patent the cease-and-desist letters, unfortunately there is far too much prior art on those...
[1] http://www2.mnbar.org/benchandbar/2007/apr07/drafting.htm
Ah, you are correct for the US: https://chillingeffects.org/copyright/faq.cgi#QID757
You can indeed use our documents though and I'll add a licence to the repo to make that clear (after speaking to the lawyers involved first to ensure the licence I choose is the right one).
You can indeed use our documents though and I'll add a licence to the repo to make that clear (after speaking to the lawyers involved first to ensure the licence I choose is the right one).
A true patent troll doesn't let little things like prior art stop them...
If I don't read the phrase "By clicking you agree..." am I still agreeing when I click?
It's an interesting situation. It could be assumed that everyone sees that, and then perhaps not require proof that the person saw that statement. However if you apply that same logic it could easily be assumed people aren't actually reading the Terms, and so how could that be allowed to be binding? It is technically possible to have a time-check to see how long someone has spent on a Terms of Service page (if any at all), so there couldn't be the excuse that it is impossible otherwise. I suppose it would come down to a judge deciding who should be allotted more protection, and hopefully for the benefit of society. I imagine there must already be case law that says one way or another.
is it binding if i write a script using curl? or, even better, hitting enter on the default button?
[deleted]
I just have two semesters of law at accountancy school , but I would recommend it to everyone.
Similar paragraph is pretty much every where, including GMail in less strong form.
Similar paragraph is pretty much every where, including GMail in less strong form.
The _transfer_ of IP Rights? From what I've seen it isn't everywhere - I've checked many performance monitoring agreements, and agreements of other software. Many performance monitoring companies require you give them a license to your ideas. But a few go further than that - and want to transfer the IP rights as well. Why go that extra step? Very successful monitoring companies haven't needed this.
Ultimately, our lawyers said "no" to this clause.
Ultimately, our lawyers said "no" to this clause.
This is from gmail license:
When you upload ... you give Google (and those we work with) a worldwide license to use ... modify, create derivative work. The rights you grant ... are for... improving our Services, and to develop new ones. This license continues even if you stop using our Services ....
When you upload ... you give Google (and those we work with) a worldwide license to use ... modify, create derivative work. The rights you grant ... are for... improving our Services, and to develop new ones. This license continues even if you stop using our Services ....
That's very different. I license Google to use my idea, it is still my idea. I can still do whatever else I want with it.
If I transfer it then it belongs to Google now.
If I transfer it then it belongs to Google now.
Is any court going to take seriously the assertion that clicking on "I agree" underneath a 6082 word agreement really establishes a binding contract to transfer intellectual property? Doesn't a contract require a "meeting of the minds"[1], i.e., intent by both parties to enter into the contract? In this case, it would seem that the person who agrees to the TOS will have been tricked into accepting an unusual condition that's not generally part of such agreements. (If a delivery person asked you to sign to indicate receipt of a package, but buried in the fine print was a clause saying that you were transferring the title to your car to FedEx, would that be a valid contract?)
[1] https://en.wikipedia.org/wiki/Meeting_of_minds