Regular EULA + Readable EULA: Seemed like a good idea at the time?

My friend abby directed me to Aviary.com, a site that provides web based tools for creating art.  Its mission is apparently to make it easy to create derivative works from the works of others that have also been created on or submitted to Aviary.com.  The Terms of Use are particularly interesting.

First, in comparison to the Facebook Terms of Use, Aviary.com at least appears to be somewhat more limited in the rights that it claims to submitted works:

You acknowledge and agree that if you use any of the Services to contribute User Content to the Site in such manner as to make it available to all users or to permit third parties to contribute Content through your User account, Aviary will have a non-exclusive, worldwide, royalty-free, transferable, sublicensable (including, without limitation, by means of a Creative Commons License) right, under all of your intellectual property rights, to copy, cache, publish, display, perform, distribute, translate and store such User Content, and to allow third parties to do so in connection with the marketing or promotion of Aviary, the Site or the Services by such third parties.

Aviary.com is still claiming the right to publish, distribute, and sublicense.  However, they don’t reserve the right to create derivative works, so it is arguable that they’re only trying to claim the rights necessary to operate the service.  Further, while they do state that the right is sublicensable, they seem to be limiting third-party licensing to situations promoting Aviary.

More interesting, though, is the fact that the Terms of Use are actually two sets of terms of use: a “Legalese” version and a “Summary” version.  Given Aviary.com’s stated goal of bringing easy reuse and licensing of works to the masses, this seems like a great idea for the users.

However, what if they don’t match?  Which one controls?  Isn’t it defeating the purpose of the legalese contract language if you have summary language printed right next to it that could be used to modify the scope of the legalese?

Examples and analysis after the jump…

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An example of why Facebook self-governance may be unworkable

I previously discussed the fact that Facebook was kicking around the idea of reworking its terms of use, and to solicit user feedback before implementing certain types of changes.  Facebook stated that a user vote would be considered if 30% of active registered users voted, meaning that 50 million users would need to participate.  As unlikely as that seems under normal circumstances, there are probably even more reasons why this is unworkable.

Case in point:  In the past couple of days Facebook rolled out a massive change to its layout, prompting dissent from a great number of users.  This morning, a new application appeared, prompting people to vote for or against the new layout.  One blogger, at least, was impressed by this new interactiveness:

I must credit Facebook with having learned something from its previous mistakes as they are at least providing a way for users to feed back their feelings in the form of a “thumbs up or down” vote, as well as a page for people to voice their opinions in greater detail. At the time of writing, the votes in favor of the new layout were at 6,111 while votes against have already reached nearly 75,000 and are increasing every second.

However, take a look at the application page.  It states, in the bottom right corner, that this application “was not developed by Facebook.”

So, is this an official Facebook vote?  Is it a phishing scam?  Does it have any meaning whatsoever?  And is there any way to know?  I can’t tell.

In the current situation, it’s possible that, at worst, a whole lot of people just added an application that they don’t need, and gave it permission to grab their user data without knowing who wrote it or what they plan to do with the user data.

In future situations, however, if official votes were to take place, it will be important to get as many people to participate in the official vote as possible.  If the outcome could be rigged by diverting people to unofficial voting sites and duping them into thinking that they participated in the official vote, it may be even harder to get to that magic 30%.

Managing MMO property rights via the end game?

The sci-fi themed MMOG Tabula Rasa was recently shut down.  I never played it, but the basic premise of the game was that the players played the role of humans joined together to battle an alien race called the Bane.

Once the decision was made to shut the game down, the developers decided to go out with a bang.  A week before the shutdown, a message describing an imminent massive enemy attack was posted to their message board:

We request that all military personnel begin fortifying defenses at every AFS base in preparation for a massive Bane assault. If enemy troop movements are as large as we fear, and the Neph are truly prepared to lead all out war against us, this may be our last stand. Penumbra has been informed of the situation and is standing by on the use of their last resort weapon. We can not afford to be complacent or uncertain, but if it is truly our destiny to be destroyed, we are taking them all with us.

The remaining players joined in this organized event on the last night the game was operating as a kind of a sendoff.  The “last resort weapon” in the game was apparently so powerful that it took down all of the servers in the real world, and the game came to an end.

I thought this was a creative way of folding the real world cessation of the game into the story of the virtual world.  I also found this interesting, though, because of what it suggests about the power of game developers to use game mechanics to alter real-world experiences.

For example, much has been made of the real-world value of virtual property, whether MMOG participants should have a cognizable property right in said property, and whether the providers of MMOGs should be worried about liability for depriving participants of their rights in said property.   However, what if an MMOG provider eliminated the value of the virtual property, not by forcibly depriving the participant of access to the property or the ability to transfer the property, but instead by eliminating the demand for the property?

Here’s my thought experiment:  Say Blizzard wants to shut down WoW (god forbid), and players are threatening suit because they expected to be able to sell their items for real-world currency to other players (we’ll ignore the fact that Blizzard’s EULA for WoW technically doesn’t allow that, since it happens anyway).  Instead of just going and shutting down WoW, Blizzard “tweaks” the balance of the game such that giant groups of elite mobs (translated: lots of really powerful bad guys) roam through normally safe areas, infiltrate capital cities, and camp every graveyard.  In other words, the game becomes “challenging” to the point where it’s impossible to log in without your character being killed almost immediately.

The effect of this seems to be that no one would be interested in playing the game anymore.  Hence, no one would be interested in paying real-world currency for virtual items in the game.  Hence, the real-world value of those items would shrink to nothing.  Hence, Blizzard would no longer have any liability, and could shut down the game without objection.

I think it’s an interesting move because it ignores trying to solve the problem through a legal solution, and instead solves it purely with game mechanics.  It might not be the best PR move for whatever Blizzard was planning on launching to take its place, but maybe it’s a way out nonetheless?

Facebook’s latest attempt at “friendliness”

Facebook just released a statement concerning future changes to their Terms of Use:

Beginning today, we are giving you a greater opportunity to voice your opinion over how Facebook is governed. We’re starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we’ll consider—or the reason we won’t consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We’ve created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you’ll also have the ability to vote for or against proposed changes.

I suppose it’s nice to see that Facebook is trying to take the worries of its users to heart.  If you pay attention to the fine print, though, they are — unsurprisingly — not promising to really do anything.  More analysis after the jump.

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i can haz acceptance?

I saw this on Boing Boing, and felt I had to share.  Long story short: some woman built a contraption to let her cat click her mouse, and purportedly create unenforceable EULAs:

As he is not a legal entity, I don’t really know how kitty’s agreements would stand up in court, but I like to think he would be responsible for any breaches of contract, assuming the agreement is even enforceable. After all, he is not even of legal age, at least in human years.

How adorable.  Simba is clearly way more intelligent than most other cats, too, what with being able to spell properly and write in cursive and all that.

I realize that this was a joke (and another reason to post cat pictures on the internet, one of the founding reasons for the invention of the internet, along with viewing pornography and arguing about professional wrestling), but I can’t imagine that this EULA wouldn’t be enforceable.  Sure, the cat pressed the button, but the user rigged up a contraption and enticed the cat to stand on it.  Seems to me that’s enough action to show consent, as the user could have just as easily not rigged up the contraption or enticed the cat.

On the other hand, though, maybe they’re on to a novel theory: so long as you don’t physically come in contact with the keyboard or mouse, maybe you can’t be held accountable for anything that happens through your computer!  Time to go buy a pair of gloves and fire up BitTorrent!

Quick thought about Facebook’s EULA

I’m working on a longer post about Facebook’s EULA, but one thing about this whole mess deserves separate comment.  A recently released comment by a Facebook spokesman states the following:

We are not claiming and have never claimed ownership of material that users upload.

OK, so, Facebook doesn’t “own” user submitted content.  That’s great.  However, they take:

an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

Uh… so… they can do basically whatever they want with it, including using it in their advertising, selling the right to use it to other people, basing derivative works off of it, etc.  But at least they don’t claim to own it!  Yay!

Also, both the old version and the new, controversial version of the Facebook EULA have been made available in the EULA gallery.

New Feature – The EULA Gallery

Since we just started, I suppose pretty much every feature is new.  However, I thought this deserved special attention.

We plan to spend some time here reading, discussing, and analyzing (and mocking?) End User License Agreements, or EULAs.  One way to support that discussion will be our new EULA Gallery.  If we discuss a EULA, we’ll archive the discussed version there for posterity.  We may also post other interesting EULAs for general comment discussion, or just for reference.

If you enjoy EULAs as much as I, the FinePrintReader, enjoy EULAs, I’m sure you’ll enjoy our gallery.  Of course, since that statement will probably apply to approximately no one, I hope you at least grudgintly find it marginally useful.