2. TERMS OF SERVICE (TOS) =
PARAMETERS FOR USE OF A
PARTICULAR PLATFORM.
CC’S ROLE = THINK ABOUT
HOW THOSE TOS AFFECT THE
BROADER COMMONS.
3. TWO MOST COMMON TERMS OF
SERVICE ISSUES
#1 Platform requires a direct
license for all content, rather than
relying upon the CC license.
Example: “[Y]ou grant us a non-
exclusive, transferable, sub-
licensable, royalty-free, worldwide
license to use any IP content that you
post on or in connection with
Facebook.”
#2 Platform imposes restrictions
on content that contradict what is
allowed by the terms of the CC
license on the content.
Examples appear in all different
forms: prohibiting downloads,
prohibiting commercial use, requiring
attribution that goes above what is
required by the CC license, etc.
4. TOS ISSUE #1: DIRECT LICENSE
TO PLATFORM
What is the problem? (in theory & practice)
Can CC fix it by changing the licenses?
How can platforms fix the problem?
5. SAMPLE PLATFORM FIX
“If you provide any content to [the platform], you grant
[the platform] a non-exclusive, royalty-free right to use
that content, unless the content is not owned by you, in
which case you represent and warrant that such content
is in the public domain or available under a Creative
Commons license or other terms permitting upload to
[the platform].”
6. TOS ISSUE #2: ADDITIONAL
RESTRICTIONS ON CONTENT
What is the problem? (in theory & practice)
Can CC fix the problem with its licenses or policies?
How can platforms fix the problem?
7. SAMPLE PLATFORM FIX
“For the avoidance of doubt, nothing in this Agreement is
designed to prevent you from reusing content available
under a Creative Commons license according to the
terms and conditions of the applicable license.”
8. OTHER ISSUES WITH PLATFORMS
AND TOS
-Platforms change their TOS all the
time.
-TOS compete with public licenses.
-Platforms want users to license them
separately.
-They offer a limited set of public
licenses (if any).
-They can make attribution difficult
(where are the permanent links?
what if one is uploading for
others?)
-They can require registration
before download.
-They can convert files; they may
hide originals.
Possible solution: Self/communal hosting with FLOSS; e.g., use GNU
Media Goblin for sharing photos
Editor's Notes
Both for platforms that enable CC licensing for content on the platform and for those that don’t but that people might upload CC licensed content to.
Most platforms think only about their own platform when they devise their TOS (WMF is exception!). It’s our job to think broader, or encourage platforms to do so.
Over the course of the past 6 months, I’ve read a lot of TOS. Started with WMF pilot; now just part of our workflow when we talk to a platform. We see the same issues over and over and over again.
Problem in theory = Platforms require direct license. For owner of CC-licensed content, this is fine. For 3pt content, it’s a conflict. Either violating license or TOS. True even if TOS license is identical to CC, but never the case anyway. Problem in practice = Never heard of actual conflict. But can have chilling effect where lawyers are involved. In theory, platform could use TOS violation as reason to discontinue someone’s account. Or CC licensor could use it to sue uploader for infringement.
(1) Rationale for no-sublicensing is that licensor always has direct relationship with reuser; far more complex if rights come from diff sources and but for this issue, unnecessary; (2) any fix we made wouldn’t really be comprehensive b/c TOS are not uniform; (3) the problem with direct license to platforms is far bigger than just CC licensed content. Any 3pt content would be a violation of this (e.g., fair use). Direct license is just a product of the legal fiction that is TOS as a contract.
Platforms can fix this easily. We’ve found that they are quite open to fixing, though may don’t really see it as a problem to begin with. Think we’re reading too literally – maybe they understand that much of TOS is a fiction anyway.
Lots of versions of this – essentially keep the direct license for content you own, and then say you rep & warrant that any content not owned by you can be uploaded.
Problem = this is a platform-by-platform solution. Creating a toolkit that may help with this. The platform initiative has made this much easier though.
Problem in theory = Licensor can license under different terms but uploader can’t add restrictions on 3pt content. (nor can platform!) Violation of license, but more importantly, really confusing for reusers. Destroys purpose of standardization and undermines CC licenses.
Can’t fix it with the licenses, but we do have policies to try to help curb. License modification policy says you can’t use CC brand if you add restrictions that prevent exercise of rights the CC license grants. We have enforced this some, but not made a huge effort.
Platforms can fix very easily if they want to. Sometimes these restrictions are intentional, unlike the direct license issue which is typically unintended.
We’ve had a lot of success getting platforms to add something like this, which basically confirms that the TOS restrictions aren’t intended to cover CC licensed stuff.
