The Gripe Line: The New Licensing Terms

SAN MATEO (03/27/2000) - If I give you a hammer for free, you might be a little upset if later I told you it came with the condition that I own anything you make with it. But that's the way e-businesses are thinking of the "free" tools they provide on the Internet.

This issue first surfaced last year when Yahoo tried to slip past new terms for users of the free home page service on GeoCities, which Yahoo had just acquired. For any content posted on its Web pages, GeoCities users were required to grant to Yahoo a "royalty-free, perpetual, irrevocable, nonexclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed." In other words, if Yahoo liked something on your Web site, it was Yahoo's right to take it and sell it to others.

Fortunately, enough GeoCities "homesteaders" took the trouble to read Yahoo's new terms to spot this, and they quickly raised a stink. After a few somewhat disingenuous attempts to placate the angry users with half-measures, Yahoo finally issued new terms of service specifically for GeoCities that eliminated the content-grabbing language. Yahoo added language specifically disclaiming ownership of the user's content and limiting its license of the content to the purpose of displaying and distributing it on Yahoo's network. So everybody was happy.

But although GeoCities users were able to rid themselves of Yahoo's overreaching terms, content-grabbing licenses similar to Yahoo's original keep cropping up in other places on the Internet. (Outside of GeoCities, Yahoo itself continues to make the unlimited claim for some types of content posted in other publicly accessible areas of its site.) Although some portals have chosen to follow the revised GeoCities model of clearly limiting the purpose of their license, readers continue to find others that claim intellectual property rights on all content for any purpose.

"Anything which a member posts on AOL [America Online] becomes AOL's property for all forms of future reuse," noted one reader ruefully over AOL terms that grant it a "Limited License" to use any posted content "anywhere and for any purpose." The reader added that "this was not the case when I first started using AOL. This is nothing less than a work-for-hire agreement without payment for the work!"

A brouhaha similar to the Yahoo-GeoCities situation arose earlier this year regarding the user agreement for Apple's Web-based iTools services. Again the language of the agreement seemed to grant Apple rights to take any content posted or stored on the services to use as it pleased. After protests were raised, Apple reworked the agreement into a more reasonable form.

The most remarkable content-grabbing license pointed out to me so far comes from a somewhat surprising source: Intel. Among a number of free Web applets Intel offers at its site is Photo Album II, an applet that lets users add different imaging effects to photographs they're putting on their Web pages. If you go to download the applet, you are presented with an "Intel Applet License Agreement," to which you must agree before proceeding. Those who bother to read it find a section titled "New Developments," which says that "all works of authorship, inventions, improvements, developments making use of the Applet or any portion of the Applet, solely or in collaboration with others, as well as all patents, copyrights, trade secrets, trademarks, and other intellectual property rights therein and thereto (collectively, 'Developments'), are the sole property of Intel."

Several attorneys who have seen the Photo Album II license (and that of some of the Intel Web applets, which have the identical license) interpret it to mean exactly what it sounds like: You use Intel's applet to help create an image, and the image becomes Intel's property. This even goes one step further than Yahoo or Apple did with their content-grabbing terms, because it claims full exclusive ownership of your content.

An Intel representative says that, although the language may not be as clear as it should have been, its intent was only to keep people from using all or part of the applet's code in an application of their own. Certainly, it's hard to see why Intel would really want ownership of the photos of your kiddies, just like it's rather improbable that AOL is planning to resell comments you post on one of their forums.

However, it would be a big mistake to pass this off as lawyers being lawyers.

One reason, of course, is the Uniform Computer Information Transactions Act (UCITA). Whatever the intent the lawyers may have, these agreements become enforceable under UCITA. But it's not just UCITA that we should be worried about when we see these content-grabbing licenses, as we'll discuss next time.

Got a complaint on how a vendor is treating you? Write to Ed Foster, InfoWorld's reader advocate, at gripe@infoworld.com.

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