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7 Key Elements of Effective Terms of Use: Handling User Content
Tuesday, July 1, 2014

Most effective Terms of Use (also known as Terms of Service (TOS)) address seven key concepts:  (1) the uses of the website and its services which are permitted by the website operator; (2) the manner in which user-created content is handled by the website operator; (3) an appropriate disclaimer of warranties which might otherwise apply to the website content or services; (4) a provision limiting the liability of the website operator for certain types of conduct; (5) a reference to the website's privacy policy or explanation of how information belonging to website users is collected, maintained, and used; (6) an explanation of which state's law governs the Terms of Use and where and how disputes between the website operator and a user will be resolved; and (7) a provision describing how and under what circumstances the terms of the Terms of Use may be modified.  

In this series of posts, we will identify and briefly describe each of the seven key elements of effective website terms of use.  Last week, we discussed the uses of the website and its services which are permitted by the website operator.  This week, we're on to the second element of effective terms of use:

2.  Treatment of User Content.  A website's Terms of Use should clearly describe how the website treats content uploaded or otherwise submitted by users of the website.  This provision should address: (1) as between the website operator and user, who retains ownership of the user content; (2) if the website operator does not own the user content, what rights are being granted by the user by virtue of submitted his or her content; (3) how the website operator intends to use the user content; and (4) how the website operator will handle claims that user content infringes the intellectual property rights of a third party.

Most popular Internet destinations, including Google, Facebook, Instagram, and YouTube, provide that the user retains ownership over all the content he or she submits to the website.  However, in each case, the Terms of Use grant to the website operator a broad range of rights which are tatamount to ownership.  In some cases, this grant of rights outlasts even the time that the content is stored on the services offered by the website.  

Google's Terms of Service provide that:

When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. 

Facebook's Statement of Rights and Responsibilities provides that:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you 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 (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

Similarly, Instagram's Terms of Use provide:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service's Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 ("Sharing of Your Information"), 4 ("How We Store Your Information"), and 5 ("Your Choices About Your Information").

YouTube's Terms of Use provide:

For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.

The licenses granted by these Terms of Use are undoubtedly broad, but the very nature of the services they govern (social media and content-sharing services) require a broad grant of rights to the website operator in order to function.  Other types of websites may not need such a broad grant of rights and website operators should take care in narrowly-tailoring the license they take from their users, lest they suffer from the negative consumer reaction which invariably results from public perception that they are taking too many rights in user content.  

To read Part 1 Click Here

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