Terms of Use: What do they actually say?

Do rental cars and Facebook have anything in common?  Well maybe more than you would expect.  Since the advent of the click-wrap, click-through, and click-agree Agreements, I have struggled with how binding they can be.  Can we really expect the parent of a screaming 2 ½ year old to be in a position to “Agree” to the lengthy of Terms of Use they are presented with when trying to access content to appease their screaming child?  Should it be different for the parent and any other person?  This post will look at how Canadian courts have dealt with the issue of reliance on agreements containing onerous provisions and presented with the expectation of accepting them in a short time.

It is a balancing act to create Terms of Use, one has to balance the desire to minimize risk with the need to make the user aware of the Terms.  In Canada, the duty to make a party aware of provisions dates back to 1978 when Mr. Clendenning rented a car from Tilden Rent-A-Car.  As was, and still is common practice, the renter of a vehicle does not read through the whole rental agreement.  In this case, Mr. Clendenning did not read the fine print on the back of a rental agreement and the attendant at the rental agency was aware of this.  When the rental agency tried to enforce a particularly onerous provision of the fine print, the court refused to let them rely on these terms because they were unusual, particularly stringent and onerous, and the agency was or should have been aware of the fact that Mr. Clendenning did not read the terms or was not aware of them/did not intend to be bound by them, the court said:

“In many cases the parties seeking to rely on the terms of the contract know or ought to have known that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains.  Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party…”

Anyone who wants to read a little further can look up Tilden Rent-A-Car Co. v. Clendenning, (1978), 83 D.L.R. (3d) 400.

How does this apply to Terms of Use?  Well, while the general principle still applies: one is bound by Terms of Use when they are made aware of and/or are required to accept/agree to the terms before being able to use or access the product or service, whether this is click-wrap or otherwise.

What if we take the principle applied to Mr. Clendenning and apply it to click-wrap agreements (the ones where you have to click “I Agree”)?  While the circumstance is different from the rental car industry, the practical reality of users’ actions may not be all that different, and it is possible that the operators of the sites/apps/services ought to know that.

In click-wrap agreements, an attendant does not give you the agreement and watch you sign it without reading it through, but, would it be reasonable for the operator of a site/app/service to be aware that some… many… I could even endeavor to say that the majority, of readers do not read through the entire Terms of Use/Service before clicking “I Agree”.  This is particularly relevant if the Terms go on for thousands of words and possibly contain language so complex that even a seasoned lawyer would take hours to work through them.  If this is in fact the reality, would it be wrong then to argue that the operator should not be able to rely on any provisions of the Terms of Use which are particularly onerous or unusual?

It is certainly true that unlike the usual car rental situation in Tilden, a user of an online site/app/service is at liberty to take their time to read the Terms of Use through at their leisure before using the site/app/service.  While this should play into the determination of how much the user should be presumed to be aware of, the Tilden principle still held that a person relying on terms can only rely on terms they know or ought to have known that the signing party was aware of or intended to be bound by.  I think it is fair to ask what the operator of the site/app/service actually OUGHT to be aware of.  Here is where the issue arises as to what the user can reasonably have been expected to have read/understood/intended to be bound by.  In some cases as mentioned at the beginning of this post, a parent may really not be expected to have had the time to read the Terms, while in other instances, i.e. before joining a social network site or opening an email account with a webmail server, a user can be expected to take more time to look over Terms of Use/Service.  It would also be fair to argue that the length and complexity of the Terms presented to the users would also figure into what the users would reasonably understand, read, and intend to agree to.

So, what can a prudent site operator or app publisher do in order to try and protect themselves from this type of application of the Tilden principle?  While there is no clear answer, an operator can take efforts to make the Terms of Use as clear as possible, as easy to read as possible, and only look for rights/indemnities which one would reasonably expect to find in typical Terms of Use/Service for similar apps/sites/services.

Some of the techniques which can be helpful (not necessarily applicable to all circumstances and certainly not a comprehensive list):

  • Use Simple English rather than legal lingo whenever possible;
  • Try and make the Terms as short as possible;
  • In some circumstances outline the General Terms in a summary;
  • Draw particular attention to any unusual or particularly onerous or stringent terms;
  • Offer easy modes of communication for any questions a prospective user may have.

*Now I have to include the disclaimer that you should always consult with an appropriate lawyer in drafting your Terms of Use/Service.

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Pinterest – “Do I need to take down my account?”

First off, this article is not focused on Pinterest or any other social networking site in particular, rather in light of the recent commentaries and press associated with the Pinterest Terms of Use, this seems like a good time to bring to light some of the issues around user content posted on social network sites in general.
As is the case with many social networking or image sharing sites, the operators of the site/app/service (we will call them “Operators” for now) understandably do not want to take the responsibility for material posted by the users. Like anyone, the Operators want to minimize their risk – this is not to say that all sites are reasonable in how they approach the issue of user posted content, and that is what deserves some commentary.
Because various legislation, particularly in Canada does not do a very good job of addressing the current reality of intellectual property uses (permitted and restricted). It would not necessarily be off base to say that in the present social network driven society posting an image is akin to telling a friend about an event or showing them a picture during a conversation. The law does not take this view yet, and because of this, Operators need to protect themselves to perhaps a higher degree than what would be practically expected. But again, care has to be taken to understand the extent and implications of these protective measures.
So what is the average Operator concerned with? Operators don’t necessarily have control over what is being posted and because the actual act of posting constitutes a copyright infringement (reproducing the content), the owner of the original content could come after the Operator claiming a breach of the content owner’s rights. So the Operator wants to protect itself from this. Where does an operator find this protection? One solution could be insurance, but, often insurance will not cover user posted materials, or make it too expensive to be a practical solution. Another mode of protection would be constant monitoring, which is not only time consuming, but also can be insufficient as while you can fairly readily identify a clip from the latest blockbuster film, distinguishing between a photograph taken by a user and one taken by an recreational or professional photographer is not always possible. For this reason, Operators ask users to agree to only post materials they have the right to post, and if they do something contravening their agreement, they take responsibility for it.
Unfortunately users are not always made clearly aware of what they are agreeing to – yes, reading those Terms of Use/Service can be a real drag, and well who reads every word of them anyways? I have to confess that I have encountered Terms so complicated and long that I couldn’t get through them in over an hour – my next post will discuss the issue of complicated Terms of Use/Service.
Now back to what the user is faced with when the Operator presents them with the Terms of Use! What is the key purpose of social networking sites – to share things you think are cool, unique, or otherwise comment worthy. Is it reasonable to think that your “sharing” or “liking” or “pinning” something is actually a benefit to the content owner? Most often it probably is, but, the fact of the matter is that it doesn’t even necessarily matter if there is an actual or perceived benefit to the use. The most frequent question is “did the user have the right to make that use of the property?” Unfortunately the answer is not frequently yes if you are sharing someone else’s content (be it an image, a sound bite, a picture of a work of art, or a combination of any of these). Shouldn’t a user be permitted to express their opinions to others as to what they like and don’t like? Absolutely! Isn’t posting a picture I like doing the same thing as telling someone that I like it? Nope! While directing someone to the website, store, or gallery of the content owner can be acceptable, reproducing the content in an image or audio file accessible through another website is not necessarily a permitted use without having the appropriate permission. This is why an Operator asks that the users not only guarantee that they have the right to use the material, and allow the Operator to reproduce material, combine it with other material, modify the material, etc… and if the user posts material without the right, then the Operator asks to be protected by the user for any claims/damages.
So we have covered the views of the average user and operator, what goes beyond that? Well some social networks want permission to use the posts other than simply for the purposes the user has intended (i.e. sharing with fellow users). Some sites want to be able to use the posts in advertising for the site or services. Whether this is type of use is reasonably contemplated by the user is questionable. Other sites actually take the right to make further commercial use of posts, while I am not aware of any such use to date, some of the Terms of Use/Service would allow the operator to actually sell images posted on the website. It is quite unlikely that the average user would expect they are giving this type of right to the Operator. So this is where knowing and understanding what the Terms of Use/Service have you agreeing to is important.
Until legislation in various countries address the new reality of sharing, users do in fact have to pay attention to what they are agreeing to… well… maybe as long as it’s reasonable… maybe? The next post will deal with this question.

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Can there be unrecognizable copyright infringement?

A copyright infringement of a work, be it a painting, photograph, television show, musical composition, or source code can take many forms, one of which is a “reproduction” or”copy”.  In order to establish an infringing “copy” the courts in Canada require that a “Substantial Part” of the original work be reproduced or copied.  In determining what is “Substantial”, the courts look at quality over quantity. So, even if only a small part of a work (i.e. a few words of a speech) is copied, if that small part is significant enough, the “copy” can be an infringement.

There are many other factors involved in establishing a copyright infringement, but I will leave that discussion for text books and law school Profs.  Lately I have been particularly intrigued by the notion of an unrecognizable copy for lack of a better term.  Traditionally, when one looks at an audio-visual work (let’s use a TV show as an example here) we can say, “Hey! This show uses the same characters, settings, music and plot-line as another show before it show! It must be a COPY!”  Then the lawyers would step in, correspond with one another and possibly go to court establishing that if Sesame Road were produced by people who have seen Sesame Street and without getting a license from the owners of Sesame Street, it is a “Copy.” With video games and other computer program based audio-visual works, it’s not always so clear cut.  When the audio and visual elements can be separated from the program or code and other programming materials, these separate pieces are each separate works subject to their own copyright – the music has copyrights (in fact several), the visuals have copyrights, and the code and other programming materials like the design documents each have copyrights.  With music and visual elements, we listen or look and can determine if there are similarities. Unfortunately with code and programming materials, it’s not so simple.  Because the code and programming materials set out the parameters of a game or program and how the user must interact in order to accomplish tasks, even the original programmer could play a game or otherwise experience the end product and not be able to determine if it is a copy.

Let’s say the code and programming materials lay out a configuration that a player must, at a specific time in a game, enter the following sequence of keys to continue to the next level, “UP, UP, DOWN, DOWN, LEFT, RIGHT, LEFT, RIGHT, B-key, A-key” (ah, the classic!) This sequence could make a little knight running around a graveyard with zombies popping up from the ground “look up, look up, crouch, crouch, turn left, turn right, turn left, turn right, jump, and throw a spear”.  With different visual elements, it could  make a high-tech car equipped with weapons necessary to evade and destroy bad guys trying to run it off the road “speed up, speed up, slow down, slow down, change lanes left-right-left-right, oil slick, gunfire”.  With this short configuration, it may be a little obvious, but in standard gameplay over a timeline, it is easy to see how it could not be recognizable, even to the author (programmer or creative designer) of the original work (code, or programming documents).  In order to see the copy, the code or programming materials of the two games would have to be compared, and users/audience members do not look at or even have access to these elements.

This is to say that things have changed since the days of unidirectional or passive audio-visual content. Now you can make a copy which the author of the original work might not recognize even when experiencing the copy.

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All rights, in perpetuity, throughout the universe, in all languages, and in all media now known or hereafter devised”

This is familiar language for the transfer of copyright and other intellectual property rights.  Let’s talk about the territory, “The Universe”.  Prior to the rise of social networks and virtual worlds the term “universe” was commonly understood (without getting philosophical).  Now the term may not be so clear.

Most should agree that when we are listening to music, or watching a video in our living room, you are consuming the work in the universe/world/country/city/address you live in.  What happens when you are not watching it in your living room, but rather online, or even if it is your virtual world avatar who is consuming the material?

Let’s take it one step further.  The Music Genome Project was commenced in 1999 by Will Glaser and Tim Westergren, and a year later, with the help of Jon Kraft morphed into “Pandora Media” http://www.pandora.com.  The project sought to examine music in much the same way as humans can be examined through their DNA.  The project and Pandora Media would analyze songs through mathematical algorithms using about 400 attributes.  Based on user selections, Pandora Media streams songs to the user’s “stations” introducing the user to new music which has a makeup similar to the user’s initial selection and songs the user has identified that they like.

Considering that avatars in virtual worlds can continue to interact with their environments and even other avatars in the absence of their user, one may ask where their actions are taking place.  If an avatar was to create a playlist or video library, or simply play songs or videos for another avatar, are these activities taking place in the virtual world of cyberspace or the physical world we live in?”

To address this question, in appropriate circumstances, I have started to adopt slightly revised language in my right conveyances, referencing the territory both “physical and virtual”.

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Developing Entertainment Content on Time?

After hearing Jordan Mechner discuss his experiences with creating the “Prince of Persia” franchise, I have thought how common some of the obstacles he faced are – one in particular has surfaced a few times recently with clients and other industry developers – How tough is it to create something novel for an existing technology in this day and age when technology changes soooooo fas#$% %@#%^ ^$$#… sorry I just had to update my iPhone OS because the WordPress App stopped working (just kidding), but this demonstrates the point well.  Not that this blog is particularly novel, but things like the SMOOTH movement from the original Prince of Persia game certainly was smooth (and remains so to this day on the wicked iPhone Prince of Persia Retro App).  Well, Jordan explained that he filmed his younger brother running, jumping, climbing, and crouching in order to get the right movement for the first game.  Jordan then arduously digitized the movements in creating the now epic game.  Unfortunately, it took him roughly 4 years to finally program the game, at which time it was almost time for the Apple II to be retired and replaced with the Amiga.  Well lucky for us, it made the release in 1989, and despite limited success on its initial platform, it did (in large part thanks to Ubisoft) find a popular audience and has since become one of the most successful transplatform entertainment franchises to date!  Way to go Jordan, and thank you!

So this brings me to my point: With development timelines often spanning years for new technologies, it is not uncommon for a developer to struggle with getting their product out the door in time to be played/operated on the platform they initially develop it for.  It seems to be the case that many such technologies either have to be reworked in order to accommodate a new operating system or platform, or simply just do not get released.  Mobile phones are a prime example – with handsets constantly changing how is a developer expected to get a property made before a new handset comes out?  It is true that increasingly, new generations of the same handset are using the same or similar operating systems , challenges still exist to create for the different manufacturers (wouldn’t it be nice if flash worked across the board…. Ahem, Steve….)

To further complicate matters, it takes money to produce properties for any screen, big, small, fixed, or mobile, and when you add in the challenge of finding financing the task of producing screen based content becomes all the more daunting.  In Canada, financing often takes the form of not only trying to successfully pitch the concept to a VC, publisher, broadcaster or screen content producer, but also requires completing lengthy applications necessary to get additional financing from the government or other funds.  I have to divert for a second to say how lucky we are to have supportive government funds (OMDC, CMF), and the support of such initiatives like Bell Fund.  All this adds to the time it takes for a developer to provide the public with the chance to enjoy new and cutting edge properties.

So I say, “Hats off to developers” for conceiving of great ideas! “Hats off” for all the leg work involved with getting the idea out there and finding the means to get the production underway!  And, “Hats off” for going through all the technical steps of programming, animating, etc… necessary for bringing the idea to life!  All of this in time for the consumer to enjoy it on their current platform!

I think that the unusually lengthy life of the most recent generation of consoles has somewhat helped developers create for these platforms, but this does not take away from my gratitude to them for bringing us the likes of COD Modern Warfare 2 and Wii bowling.

THANK YOU!!!  All developers for your persistence.

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Enhanced Reality “ER”

The ER technology, as I mentioned in my earlier posting is basically like putting a digital filter over a camera which allows you to get information about your surroundings overlayed on top of the image you are seeing though a camera lens.  If any of you have seen the 1988 sci-fi film starring the one and only Rowdy Roddy Piper, “They Live” or read the story upon which the film was based, “Eight O’Clock in the Morning” written by Ray Nelson in 1963, this is the realization of the technology which was only fantasy at the time.

With the advent of smartphones, and portable devices combining cameras with GPS, Compass and Internet, we have seen numerous applications take the ER technology and integrate it in generally accessible applications which carry astounding potential for the way we can consume our environment.  One of the earlier uses was the application, Pandemica for the iPhone (http://itunes.apple.com/us/app/pandemica/id339263856?mt=8&ign-mpt=uo%3D6) which allows the player to hunt aliens using the player’s real physical environment as the backdrop to the hunt.

Around the same time, Wikitude was developed which promised to change the way we travel (http://www.youtube.com/watch?v=8EA8xlicmT8).

Recently there has been a slew of applications for the iPhone and other devices which allow the user to see ratings and other information for restaurants programmed into the app, beginning in London and NYC.  Now Urban Spoon has introduced the ER technology to its iPhone app (http://www.urbanspoon.com/blog/27/Urbanspoon-on-the-iPhone.html).

Soon we will be able to make not only our own maps of our surroundings identifying important places and information, but we will be able to plant virtual goods and messages in physical places which can only be accessed by someone looking through a mobile device while using an encryption key you give them.  Imagine your grand child taking a tour of the city you grew up in, all narrated by you with video and photos planted at various locations around the city.  A Toronto based developer, is presently working on this.

On a smaller scale, who wouldn’t want to make a treasure hunt for their kids to go into the backyard and hunt for clues which can only be seen through the camera on your or their mobile device? It would be like an easter egg hunt on steroids!

Another plug has to go out to the creators of City Sonic, a great app and interactive documentary the likes of which we have never seen before.  This project has the audience experience the music scene in Toronto in a marvelous and dynamic way – thanks goes out to the great minds behind it! (check out: http://www.citysonic.tv/)

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It’s ER, not AR

For years, our industries have used the term Alternate Reality and now the term has been adapted for the digital and interactive media markets, “ARGs”  Alternate Reality Games.  This acronym is well established and benefits from a large amount of traction in the growing interactive media industry.

New technologies, brought in large part from the introduction of Google’s “Street View”, and the integration of a compass into existing GPS technology in mobile devices, have now changed the stage for how we can consume and interact with our immediate environment.  These technologies allow a user to layer information over their physical surroundings when looking through a camera on their mobile device.  The prospects for the future of this technology is endless – not to mention very indicative of a Geordie LaForge visor from Star Trek TNG.  Well this technology has taken up the acronym “AR” for augmented reality.  I have to argue (go figure a lawyer finding something to argue about…) that this acronym is far to likely to be confused with alternate reality, which is something completely different.  For this reason I am now using the term “ENHANCED REALITY” or “ER” for short, I think this terminology is equally as descriptive and accurate as its predecessor with the benefit of not being as confusing with other great strides in the digital/interactive media landscape.  Next time I think I will get a little more into what’s happening in the ER and some of the potential it holds.

Stay tuned…

Enter the bandit, “AR”… if nothing

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