June 28, 1999 2:40 PM PDT

How much content do community sites "own"?

GeoCities home page builders are finding that before they can enter the new Yahoo-GeoCities site, which launched today, they have to agree to new terms of service--including one that some equate to signing away the rights to their intellectual property.

The term in question gives Yahoo "the royalty-free, perpetual, irrevocable, nonexclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed."

"Now with the merger [between Yahoo and GeoCities], my Web site is no longer my own intellectual property, and the blood, sweat, and tears I put into it is now worthless," Adrean Clark, a GeoCities user, wrote in an email to CNET News.com. "If they ever decide to use any of my graphics or personal writings, they can sell it for their own profit."

But Yahoo said it is only protecting itself from lawsuits when its hosts other people's content and its right to promote popular material.

"The goal here is not to grab other people's work or somehow capitalize on the time they have spent building these home pages," said Yahoo executive producer Tim Brady, adding that the terms are not new to the Yahoo network. "We did not create the terms of service specially for GeoCities users."

With Yahoo's acquisition of video streaming firm Broadcast.com and the growing collaboration between Internet companies and traditional media firms, some home page builders say they are nervous that under the new terms of service, their material could be turned into movies or other electronic forms of entertainment to which they would have no rights.

Several other home page community sides have similar terms, including Xoom and Lycos's Tripod--and some intellectual property lawyers see the terms as a growing trend.

"It is a bit aggressive but not uncommon," said Jeffrey Neuburger, an attorney at Brown Raysman Millstein Felder & Steiner. "It is a very broad set of rights but it avoids any problems in the future."

These rights are potentially important, added Neuburger, because Web sites may want to use the material posted on their sites in ways they may not anticipate now.

Others, however, say the terms are more far-reaching than they need to be.

"I find it a little surprising that [Yahoo] would try to capture terms quite this broad," said Mark Radcliffe, a partner at the law firm Gray Cary Ware & Freidenrich. "They have gotten more than they need."

Radcliffe also noted that the rights sought by Yahoo and other community sites are exactly those that publishers are granted under U.S. copyright law: the right to distribute, reproduce, publicly perform and display, and modify or make a derivative product.

So while members think they are only receiving space to place their intellectual property, the Web sites are acting like publishers.

Yahoo's Brady added that the company would "honor" the request of previous GeoCities' users if they want their sites removed. The company also will allow the site to live under the old terms of the contracts.

The catch, however, is that a home page cannot be update or changed in any way until the user has agreed to the new terms.

Some intellectual property attorneys suggested that users not reregister, blocking Yahoo from having rights to their material.

Indeed, several GeoCities users plan to take their home pages elsewhere.

"The bottom line is that if there are enough people who don't use the service because of those terms and conditions, ultimately Web sites will change those terms," said Neuburger. "But really most people don't even read the terms and conditions."

Yahoo's Brady said the company would not let that happen. "We have respected our users and have a history of doing that well. If it becomes a huge problem, we will absolutely look at [the situation]" he said.

The Electronic Frontier Foundation, a nonprofit civil liberties group that concentrates on the arena of computers and the Internet, said it is willing to enter the fray in support of home page builders unnerved by the implications of agreeing to the terms of service.

"This is just so egregious that we would be willing to talk to Yahoo on behalf [users] to see if we can put a little muscle into it," said Shari Steele, staff counsel for the Electronic Frontier Foundation, adding that the group may take issue with those terms whether they represent a user or not.

But even if the EFF or someone else took legal action, it is unclear whether the courts would enforce the terms of the service.

Some attorneys noted that these terms would hold up in court the same way laws governing agreements on software shrink-wraps have. In those instances, by ripping off shrink-wrap around software packages, a buyer agrees to the company's terms and conditions.

On the other hand, Radcliffe noted that "courts tend to be unsympathetic to what they see as over-reaching license grants."

For the moment, Brady said Yahoo is standing by its terms.

"I completely understand the concerns of those users," said Brady. "Ultimately the only thing we can do is to let time pass for users to see that [misusing their material] is not our intention."

 

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