Location: The Couchsurfing Project >> We are upset that CS has become a for-profit corporation
Login for full access to Couchsurfing Groups. Not a member yet? Join our community!

Terms of Use: a comparison with other similar web services
Posted December 11th, 2012 - 5:22 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 11th, 2012 - 5:36 pm by from Dijon, France (Permalink)
"Given the draconian CS Terms of Use, there is little solution. Any content (text and photo) that you input in CS will be granted licensing. This also includes references and groups content. By putting some declaration that you own the content and grant come Creative Common license will not change the legality of the ToS because it is not enforceable and will not superseed a license that you have already agreed upon."

No, I think you are wrong. The legal questions here will depend on jurisdiction. CS will first have to prove that you have legally ceded rights.

I doubt that many jurisdictions would give much validity to the CS ToU concerning intellectual property. They are unreasonably broad.

They are clearly in direct contradiction with French law, where it is legally impossible to transfer **all rights** to an artistic creation, even if you are paid millions of euros. Other jurisdictions may be less favorable to creators, but California courts would not accept the ToU as binding without considering other elements.

Posted December 11th, 2012 - 5:50 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 11th, 2012 - 6:03 pm by from Dijon, France (Permalink)
Bruce, I am from California, and quite familiar with contract law and intellectual property law. I'm sorry, but you are wrong, assuming we are talking about the same claims made in the ToU.

There are several factors to be settled in any contract dispute. CS would have a hard time establishing that its ToU are a valid contract, especially since it has significantly changed them several times without any notice to users. If you are active in google, yahoo, a bank, etc, you will have noticed that every change of ToU is accompanied with notification at a minimum.

Secondly, a claim by a user to ownership of their own intellectual property would be just as strong as any ToU claim. The court would enter into questions of proportionality, IF the case ever got that far. IMO, CS would IMMEDIATELY stop exercising its property claims on specific member intellectual property, long before the case got to court.

But that is only the start of it claiming ownership to intellectual property, as it does in its ToU.

The ToU might protect it from damages except in the most outrageous situations, but it is extremely unlikely it could establish commercial ownership of your photos, as the ToU claim.

Posted December 11th, 2012 - 6:06 pm by from Paris, France (Permalink)
"I hope someone can contradict me with some legal facts".


This French court ruling does what you hope for:

https://www.couchsurfing.org/group_read.html?gid=7621&post=13312334#post13324132

Posted December 11th, 2012 - 7:26 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 11th, 2012 - 7:38 pm by from Paris, France (Permalink)
Bruco, if you read the Twipic terms carefully, you will see for example that contrary to those of CS the license ends eventually, and that they are very different in that aspect. I have yet to see terms of use as far reaching and abusive as those of CS.

The interesting thing about the Facebook case is that the court has not ruled out that French jurisdiction could be competent, simply because FB may not have a presence in France. Nobody knows how the case will end eventually. But it leaves the possibility open, that a U.S. company may not get away with whatever, just because it doesn't have a presence in the jurisdiction of its users or customers. Libertédeparole made a very convincing case why something doesn't become law just because a company writes it in its terms of use.

Have you thought about why &couchsurfing doesn't make us agree explicitly with the terms of use by clicking on an "I accept" button?

Posted December 11th, 2012 - 7:41 pm by from Dijon, France (Permalink)
Actually not, Bruce.

There is always a jurisdiction. Ask any California lawyer if they would tell CS they are free to use a user photo in a CS promotional video. The lawyer will tell you, get a signed release not only for the photo, but for each person in that video. If you can't do that, go pay some models to redo the photo, AND be careful it doesn't resemble the original photo too closely.

Posted December 11th, 2012 - 7:43 pm by from Florence, Italy (Permalink)
In general if you put a more restrictive or broader license on a single item in the site this would supersede the general one.
So if you wrote that you retain all rights on your contributions it is enforceable. C$ inc on the other part has the right to remove it for not conformance to ToU, but that is all their remedy.

Posted December 12th, 2012 - 11:02 am from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 12th, 2012 - 11:10 am by from Paris, France (Permalink)
The pressure is not just on CS to change. And they have in the past reacted to pressure. It is also on European legislation to adapt and protect European users from abuse by non-European companies. I have information confirming that CS is doing European legislators a huge favor in that sense, by illustrating just how absurd the current situation is, and how urgent a remedy. We can all play a part in keeping up that pressure. Not by taking the stance that nothing can be done and CS is covered, but by continuing to stand up for what for our legitimate rights.

Posted December 12th, 2012 - 11:59 am by from Dijon, France (Permalink)
Bruco,

Civil law is NEVER black and white. The details of any particular case, along with the biases of a particular jurisdiction and court, will determine the outcome. All kinds of legal questions come into play - standing, jurisdiction, conflicting claims, proof of actual damages, etc, etc.

But intellectual property law does exist and the laws are quite rich, as is the jurisprudence. I am not going to cite 10,000 pages of legal texts here. Copyright is stronger than ever, and all recent legislation in the US has increased intellectual property rights (because the US owes much of its wealth to IP). The Internet is not a legal vacuum. Youtube removes thousands of pieces of uploaded copyright material every week. These cases never get even close to going to court in general, and the material is removed to protect Youtube from losing in court.

IMO, opinion, CS's legal team would tell it to respond to any cease and desist letter concerning a demand of removal of any material where the author **claimed** copyright protection. It would never go to court, as is the case in general everyplace.

IF the CS member in addition accompanied their posted material with a written claim of copyright protection, the case against them would be even more clear.

Much more complicated is the situation with CS claiming it has unlimited right to retain all member data, in perpetuity and with the ability to transfer all rights to use of that property without limitation, even of members who have long since left he site. This is clearly illegal in California, but that doesn't mean it is easily actionable.

But even if no recourse were possible (which is never true), it is still worth exposing the facts of the situation, by whatever means are effective. Posting a statement on your personal CS page that you retain rights over your intellectual property, besides being an element which would likely be considered by any court, is also a means to communicate about CS Corporation's immoral and illegal claims and practices.

Posted December 12th, 2012 - 2:33 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 12th, 2012 - 2:42 pm by from Paris, France (Permalink)
"I dispute that so far CS has done anything legally wrong"

Thank you for this awesome legal opinion in support of &couchsurfing.

Posted December 12th, 2012 - 2:51 pm from Berlin, Germany
This member profile has been deactivated

Posted December 12th, 2012 - 2:55 pm by from Paris, France (Permalink)
"Bruco, not Bruce"

Posted December 12th, 2012 - 3:55 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 12th, 2012 - 4:44 pm by from Paris, France (Permalink)
Bruco, absolute statements like "I dispute that so far CS has done anything legally wrong" (like that "this statement is a hoax and completely useless" statement out of Switzerland) just have all the ingredients to bring out the sarcasm in me ;-).

Posted December 12th, 2012 - 5:12 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 12th, 2012 - 5:29 pm by from Paris, France (Permalink)
"CS has so far not been
charged of any illegal actions as result of its ToS change"


If you like I can pm you the account number where you can send the funds and I'll see what I can do.

I didn't ask if you can generate or copy the &cs terms of use, but for a link to a website that actually does.

Posted December 12th, 2012 - 6:08 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 12th, 2012 - 6:20 pm by from Paris, France (Permalink)
Sorry, off to a couple of Glühweins with fellow BeWelcomers ;-) See you tomorrow when I will try to explain the difference between "same" and "similar" to your :-)

Posted December 12th, 2012 - 6:35 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 12th, 2012 - 9:02 pm by from Dijon, France (Permalink)
"You continue to ask me what I have given you already: enough examples of companies that apply similar ToS."

Bruco, PLEASE look at every single example you have posted and which anyone else has been able to identify of ToUs. They all state specifically that "you" retain ownership over your posted material, n one way or another. ONLY CS is conspicuously different in this aspect. As you point out, standard legal language does exist for a reason. The fact that CS "imitates" standard language, but does not respect it, is a clear indication that something special is happening. Are its owners using it as a test case, ready to sacrifice CS for the benefit of other holdings? Were the ToU written by a business partner who doesn't understand the law? Hard to say. But your own argument points out the dubiousness of your conclusions when you realize that CS very specifically and importantly refuses to follow standard legal language.

Otherwise, I agree that what is "legal" is to a certain degree "whatever you can get away with". But be very careful, what they "can get away with" is partially determined by voices such as yours, apparently claiming CS has the law on its side.

It is true that in the US (but not everyplace), I can, like CS, claim I have the moral and legal right to kill your grandmother. Like the CS ToU, such a statement is not illegal in itself. It is not until I actually kill her that I have done anything illegal (In the US. Other countries have different laws about such "freedom of speech" issues). And if I can hide the body, maybe not even then, according to the "whatever you can get away with" philosophy.

CS is already publicly lying about what data it shares, as can be seen by the scripts sending information to third parties running on the site.

As has been explored here or in Brainstorm in the past, I believe the CS ToU are specifically designed to try to keep ALL options open for the future, because they do not know how our personal data will be exploited in the future. The value of their stockholdings is based on vague promises of their ability to exploit us rather than on specific ones.

PLEASE also be careful about **general** statements, when you mean to refer to a specific matter. Saying "CS has done nothing illegal" is a general statement, very different from saying "the ToU are not illegal", itself different from saying "it is unlikely that the way CS has applied its ToU for the moment would result in big financial loses in court". You seem to say that if they can escape serious punishment, that means it is "legal". I don't think that is a claim you want to be making. Pointing out that CS may not care if their actions are dishonest, immoral AND illegal, because the punishment may be minor, is not the same thing as saying their actions are legal. And in fact statements such as yours minimize their "punishment", giving those who still hope to believe this is simply a minor business spat instead of a real issue, who want to believe that CS is a "socially responsible corporation" with our best interests at heart, an excuse to be innocently ignorant.

Posted December 13th, 2012 - 8:03 am from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 13th, 2012 - 8:18 am from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 16th, 2012 - 2:07 am from Sisimiut, Greenland
This member profile has been deactivated

Posted December 16th, 2012 - 2:50 pm by from Sharon Springs, United States (Permalink)
Organizations, whether for-profit (fps) or not (nfps) are like mutant Ninjas. Nfps number among them those that conscript "volunteers", solicit "donations" to enrich selective staff, and snort government handouts to erect palaces of local doctrine and pleasure. Some fps, workers owned and managed, are among the most durable and fruitful organs of community.
seth

Posted December 16th, 2012 - 3:02 pm by from Paris, France (Permalink)
I agree that one should look beyond the label what is inside. McDonald's, for instance, has probably done more charitable and socially responsible work with its Ronald McDonald foundation than &c$ ever will with its "socially responsible" B-Corp label. But when you secretly "convert" a non-profit to a for-profit, you are not off to a good start.

Posted December 16th, 2012 - 4:02 pm by from Dijon, France (Permalink)
"Organizations, whether for-profit (fps) or not (nfps) are like mutant
Ninjas. Nfps number among them those that conscript "volunteers",
solicit "donations" to enrich selective staff, and snort government
handouts to erect palaces of local doctrine and pleasure. Some fps,
workers owned and managed, are among the most durable and fruitful
organs of community."

So true.

This however has nothing to do with the present situation of the organizations being discussed here. (Though CS was an exploitative non-profit, sing donations primarily to provide perks for an inner circle.)

CS is not worker owned nor managed.

BW doesn't even reimburse its completely volunteer management a cup of coffee at board meetings, nor receive a single "government handout" (with the hypothetical future indirect exception of its tax status which has no present effect on its French taxes).

Posted December 16th, 2012 - 9:00 pm by from Sharon Springs, United States (Permalink)
Tax status has a great deal to do with current conversation. At least in US, charity recognition provides a secure incubator featuring exemption from much local,state, and federal taxation. Beyond this, nfp survival depends on converting enough enchanted disciples (volunteers/"donors" baptised by "verification") or targeting those who protect their wealth and secure influence by massive tax deductions and creating lobbies full of nfps. (tip-of hat to Ronald McD and Mitt Rom, not to mention handy Andy Carnegie and wiley Will Gates.)
s

Posted December 17th, 2012 - 5:35 am from Sisimiut, Greenland
This member profile has been deactivated

Posted December 17th, 2012 - 11:34 am by from Berlin, Germany (Permalink)
@ Bruco:

As posted many times in this and other threads, I guess one big difference between CS ToU and the ToU from the «big guys» is that CS claims those rights perpetually and for whatever purpose, while the usual trend seems to be different.

Check this post, for example:

«Feel free to go and check Google, Facebook, Tumblr, Twitter, Pinterest and Wordpress Terms of Use (just to cite the ones that are already been posted in CS forums). You will discover that all of them say something on the lines of «you give us licence to your content for the purpose of ...» and this licence usually ends with the termination of the account or after a «reasonable time». Only CS—so far—is asking for perpetual, irrevocable rights on our data for any purpose, including without limitation your name, likeness, voice or identity.»
[http://www.couchsurfing.org/group_read.html?gid=7621&post=13000298#post13168378]

As for the «new» ToU, to my knowledge they just moved the 5.3 to 4.3, without any change to the content.



On a side note, I find interesting the fact that in the «new» Privacy Policy it is stated «Couchsurfing complies with the US-EU Safe Harbor Framework», but if one takes the time to go and actually check their self-certification he will discover this important point:

«Do You Agree to Cooperate and Comply with the EU and/or Swiss Data Protection Authorities?
No».

[http://safeharbor.export.gov/companyinfo.aspx?id=16408]

That means we are back to square one, because on the one hand CS says it will comply to the rules, and on the other hand CS says it will not enforce it.

Happy welcoming to all!
Piergi

Posted December 17th, 2012 - 6:56 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 17th, 2012 - 11:48 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 18th, 2012 - 2:59 pm from Linz, Austria
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 18th, 2012 - 6:26 pm from London, England
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.

Posted December 21st, 2012 - 3:59 pm by from Paris, France (Permalink)
Instagram retreats on some service terms after backlash



Related News
Instagram tests new limits in user privacy
Wed, Dec 19 2012
Instagram says no plans to put user photos in ads
Tue, Dec 18 2012
Google Maps makes its way back to the iPhone
Thu, Dec 13 2012
Yahoo CEO Mayer revamps email in first big product move
Tue, Dec 11 2012
Google's GMail service suffers disruption
Mon, Dec 10 2012






Analysis & Opinion

Instagram unleashes a thousand words
Counterparties: Bushmasters and baksheesh





Thu Dec 20, 2012 9:44pm EST

(Reuters) - Instagram,
the popular photo-sharing service, has retreated from some but not all
of the controversial changes in its terms of service that prompted a
fierce backlash from users earlier this week.

In a blog post on Thursday, Instagram
founder and CEO Kevin Systrom apologized for a failure to "communicate
our intentions clearly." The terms of service changes pertaining to advertising have been reversed, Systrom said, and restored to what they had been before the changes announced on Monday.

Instagram,
which allows people to add filters and effects to photos and share them
easily on the Internet, was acquired by Facebook earlier this year for
$715 million.

Some top users of
Instagram, including National Geographic magazine, said they would stop
using the service after the new rules were announced on Monday.

Language
that had appeared to allow Instagram advertisers to display user photos
without compensation have been removed from updated terms of service
posted on Thursday.

The updated
terms also do not appear to contain a controversial provision which had
stated that if a child under the age of 18 used the service, it implied
his or her parent had tacitly agreed to Instagram's terms.

However,
the new terms still contain a mandatory arbitration clause, which is
not included in terms of service for other leading social media
companies like Twitter, Google, YouTube or even Facebook itself. That
immunizes Instagram from many forms of liability, according to legal
experts.

Internet experts said
Instagram had been very aggressive in asserting its rights to user
information and inviting anyone who did not agree to delete their
accounts within a few weeks.

The
updated terms still say that anyone who accesses Instagram agrees to be
bound by the new terms which are slated to go into effect on January 19.

Also,
Instagram kept language which gave it the ability to place ads in
conjunction with user content, and "that we may not always identify paid
services, sponsored content, or commercial communications as such."

Instagram representatives could not immediately be reached for comment.

Systrom
stressed in the blog post that the company had no intention of selling
the photos that users post on the service. Many users had read the new
terms of service as an indication that the company was reserving the
right to do that.

"Going forward,
rather than obtain permission from you to introduce possible advertising
products we have not yet developed, we are going to take the time to
complete our plans, and then come back to our users and explain how we
would like for our advertising business to work," Systrom said.


http://www.reuters.com/article/2012/12/21/us-usa-instagram-changes-idUSBRE8BK03K20121221

Posted December 25th, 2012 - 11:08 pm by from Paris, France (Permalink)
&couchsurfing, watch this carefully and learn your lesson if you want to avoid to be next:

http://www.reuters.com/article/2012/12/24/us-instagram-lawsuit-idUSBRE8BN0JI20121224

SAN FRANCISCO |
Mon Dec 24, 2012 2:45pm EST
(Reuters) - Facebook's Instagram
photo sharing service has been hit with what appears to be the first
civil lawsuit to result from changed service terms that prompted howls
of protest last week.

In a proposed class action lawsuit filed in San Francisco federal court on Friday, a California Instagram user leveled breach of contract and other claims against the company.

"We believe this complaint is without merit and we will fight it vigorously," Facebook spokesman Andrew Noyes said in an e-mail.

Instagram,
which allows people to add filters and effects to photos and share them
easily on the Internet, was acquired by Facebook earlier this year for
$715 million.

In announcing revised
terms of service last week, Instagram spurred suspicions that it would
sell user photos without compensation. It also announced a mandatory
arbitration clause, forcing users to waive their rights to participate
in a class action lawsuit except under very limited circumstances.

The current terms of service, in effect through mid-January, contain no such liability shield.

The
backlash prompted Instagram founder and CEO Kevin Systrom to retreat
partially a few days later, deleting language about displaying photos
without compensation.

However,
Instagram kept language that gave it the ability to place ads in
conjunction with user content, and saying "that we may not always
identify paid services, sponsored content, or commercial communications
as such." It also kept the mandatory arbitration clause.

The
lawsuit, filed by San Diego-based law firm Finkelstein & Krinsk,
says customers who do not agree with Instagram's terms can cancel their
profile but then forfeit rights to photos they had previously shared on
the service.

"In short, Instagram
declares that 'possession is nine-tenths of the law and if you don't
like it, you can't stop us,'" the lawsuit says.

Kurt
Opsahl, a senior staff attorney with the Electronic Frontier Foundation
who had criticized Instagram, said he was pleased that the company
rolled back some of the advertising terms and agreed to better explain their plans in the future.

However,
he said the new terms no longer contain language which had explicitly
promised that private photos would remain private. Facebook had
engendered criticism in the past, Opsahl said, for changing settings so
that the ability to keep some information private was no longer
available.

"Hopefully, Instagram will learn from that experience and refrain from removing privacy settings," Opsahl said.

The
civil lawsuit in U.S. District Court, Northern District of California,
is Lucy Funes, individually and on behalf of all others similarly
situated vs. Instagram Inc., 12-cv-6482.

Posted December 21st, 2012 - 4:12 pm by from Sharon Springs, United States (Permalink)
Piergi,
your comment: "I guess one big difference between CS ToU and the ToU from the «big guys» is that CS claims those rights perpetually and for whatever purpose, while the usual trend seems to be different."

latest TOS from big-time Luxemburg match-maker

"M4 does not claim ownership of the materials you provide to M4N (including feedback and suggestions) or post, upload, input or submit to M4N or any future M4-owned website or its associated services (collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting your Submissions you are granting M4 a perpetual, irrevocable, royalty-free, worldwide, fully paid, assignable right and license to reproduce, repurpose, use, store, modify, edit, translate, distribute or make available any portion or portions of your Submissions as M4 sees fit in any medium, now known or hereafter developed, for any purpose whatsoever, subject only to the terms set forth in these Terms of Use. No compensation will be paid with respect to the use of your Submission, as provided herein."
sans nicki - the gift that keeps on giving
seth

Posted December 25th, 2012 - 8:27 am from Arlington, United States
This member has chosen to allow only Couchsurfing members to see their group posts. To see this full converstion, sign up or log in.