Greg Beck’s HQ

So claims I Love Local Commercials, and I think they may be right. Judge for yourself.

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Amazon.com always has a bunch of free MP3 music samplers and promotional albums available to download for free. You can see them all at once if you view all MP3 albums sorted by price. When you run out of free stuff, there's a huge virtual bargain bin of stuff in the under-one-dollar range. A menu on the left side of the page lets you choose a genre.

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How do companies get away with slipping arbitration clauses and other abusive terms into their contracts? For one thing, they rely on the fact that most people do not have the time or motivation to read all the fine print, and that many of those who do will not understand the implications of what they are agreeing to, or will not care enough to object. Even those who do complain will not likely get far because consumer contracts are typically offered in a take-it-or-leave it manner.

This week, however, Facebook's attempt to take advantage of the usual ignorance and apathy backfired in a big way. A couple weeks ago, Facebook revised its terms of use in a way one would not expect to lead to a major controversy. Specifically, it deleted this language from its terms of use:

The removal of this language wouldn't have meant much to most users, and it doesn't seem to have attracted a lot of attention at first. But as time went on, a few began to figure out the implications of the change and to write about it on Facebook and on their blogs. Basically, Facebook was saying that the perpetual license that it had granted itself to the contents of users' profiles would no longer expire when those users shut down their accounts. Translation: "We Can Do Anything We Want With Your Content. Forever."

Outrage grew and spread, leaping from the blogosphere to the mainstream media. People began to look to other problems with the agreement, including an arbitration clause, and the requirement of using a single arbitrator in Santa Clara County, California.

Eventually, the controversy became big enough that Facebook could not ignore it, and last night in a late-night blog post the company's CEO, Mark Zuckerberg, announced that the terms of use would be rolled back to the previous version. Facebook's license to its users' content will expire once again. Arbitration remains as it was in the old agreement, but is no longer limited to Santa Clara County. Moreover, the company says this is just a temporary step. The old terms will remain until the company can draft new terms that are responsive to users' complaints. Zuckerberg promises that the new terms will be "written clearly in language that everyone can understand" and that "Facebook users will have a lot of input in crafting these terms." A new Facebook group, Facebook Bill of Rights and Responsibilities, was created for this purpose.

The Facebook incident raises the question whether the Internet is changing the balance of power between the drafters of one-sided terms of use and their customers. Even if most of a company's users don't read revised terms of use, it's pretty likely that at least a few will. Those few who take the time to understand the legalese can communicate with others on Facebook, on their blogs, and in the countless other forums the Internet provides. And the company can no longer easily ignore attempts to renegotiate abusive terms when it's not just one or two customers, but thousands, that are complaining.

Cross-posted from Consumer Law & Policy Blog

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The Associated Press unleashed a firestorm in the blogosphere last week when it claimed that Drudge Retort, a left-wing alternative to the conservative blog Drudge Report, had committed copyright infringement by linking to and briefly quoting several AP articles. Bloggers everywhere were surprised to learn that the AP expects bloggers to pay for the privilege of brief quotations from its articles. Want to quote 5 words from an AP article? The AP wants you to pay $12.50. Want to post and comment on a 60-word statement by a presidential candidate from an AP story? That’ll be $25.

Even worse, the AP requires anyone paying this licensing fee to agree to detailed terms of use, which, among other things, prohibit use of quotations from AP articles that are derogatory to the AP or the journalist who wrote the article. In other words, you’re allowed to quote an AP article to say you liked it, but not to say it was terrible. And if the AP isn’t happy with how you’re using the quotation, it reserves the right to terminate the license at any time.

Copyright law, however, is designed to encourage creativity and free expression, not to impose a stranglehold on public discussion of the news. Sure, the AP has a copyright in its articles and can prohibit blogs from reposting those articles. But the AP has no right to impose a tax on brief quotations from AP news stories for the purpose of referencing, discussing, or criticizing those stories and their authors. The right to quote a reasonable amount from a news story for purposes of commentary or criticism is guaranteed by the right of fair use in the Copyright Act, and by the First Amendment.

Under pressure of a threatened boycott by outraged bloggers, the AP appeared to back off its position on Saturday, saying it would “rethink” its policy toward bloggers and set guidelines for how much bloggers could quote without infringing the company’s copyright. But the AP again appears to be assuming that it has the right to decide how much of its stories bloggers can use. The right of fair use, when it applies, applies even without the permission of the copyright owner.

The AP’s articles belong to the AP. The public discussion of those articles, and the news included in them, belongs to the public.

Cross-posted from Citizen Vox

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