It appears Adobe is quickly responding to concerns about a surprising clause in its terms of service for Photoshop Express, the free Web-based software launched Wednesday that has otherwise been well-received.
Users were taken aback by a clause that basically gives Adobe the right to do anything it wants with their photos. As CNET's Lori Grunin first pointed out in her review on Webware, the clause in question goes like this:
Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content and to incorporate such Content into other Materials or works in any format or medium now known or later developed.
Grunin's response: "I'm going to give Adobe the benefit of the doubt and assume someone forgot to put the choke collar on the lawyers, letting something this undesirable slip through." And she was right on the money, at least according to a report from Adobe blogger John Nack, who contacted Adobe with concerns about the terms of service.
Nack wrote that he got a note back from the Photoshop Express team Friday stating that it agrees that the clause "implies things we would never do with content," and therefore the legal team is making it a priority to post revised terms.
Google's terms of service, while ignored by the vast majority of users, contain a pretty shocking clause: Under 18's are not permitted to use any of Google's Web properties. That's right, kids--no search, YouTube, Gmail, news, or images.
Under 18s wishing to watch YouTube videos of skateboarding dogs, or perform research for a school project will have to go elsewhere--Ask.com or Microsoft's Live.com search, perhaps. The message from Mountain View seems clear: We don't want your (underage) business.
Google's terms of service, thick with legalese, state that:
"You may not use ... Google's products, software, services and web sites ... and may not accept the Terms if ... you are not of legal age to form a binding contract with Google.
The problem with this, of course, is that all 50 states in the United States require that someone be at least 18 years old to form a binding contract. As for what happens when a person under 18 attempts to agree to a click-through contract, the jury is still out on that one.
When contacted about the matter, a Google spokesperson initially told me that "users need to be at least 13 years old to use Gmail."
However, when I pointed out that the language in the company's terms of service contradicted her statement, she clarified her remarks, stating that: "We require users to be able to form a legally binding contract in order to use our services. The actual age required to form a legally binding contract may differ based on jurisdiction."
When I asked what the company would do if it found out that someone under 18 were using search, or Gmail, the spokesperson told me:
"We're not in a position to verify the age or legal status of any user, given the tremendous number of users accessing Google services. That said, when we become aware of a user who is violating our Terms of Service, including not being of proper age to accept the Terms of Service, we take appropriate action, which could include the termination of the user's Google Account."
After first seeing Google's no-kids policy in the company's terms of service, any rational person would assume that it's just standard legalese that all companies are required to include. However, it turns out that Google's dot-com competition is far more kid friendly.
Facebook's terms of service state:
"This Site is intended solely for users who are thirteen years of age or older, and users of the Site under 18 who are currently in high school or college."
"By using the MySpace Services, you represent and warrant that ... you are 14 years of age or older."
As for Microsoft's Live.com search engine and Ask.com, their terms of service don't mention age at all.
To this outside observer, it seems a little bit strange that 13+ year-olds can use social-networking sites like Facebook and MySpace, where many users post their gender, sexuality, religion, and a large number of potentially embarrassing photos. Yet, those same teenagers are forbidden from conducting a Web search. Surely things should be the other way around.
Conflicting messages
Google is currently running a Doodle 4 Google contest, in which K-12 students take a shot at designing a Google company logo. The winner will receive $10,000 and their art will appear on Google's home page for a day.
When viewed in light of the "no kids here" policy in the terms of service, Google's school outreach seems rather strange. Ironically, the winner of the contest will be forbidden from viewing his or her artwork on the main Google page, unless a parent types in the URL for them.
This is hardly Joe Camel territory, but it is still very strange. Why has the company gone out of its way to write up a terms of service that bans kids, yet at the same time, is engaged in kid-friendly promotions? Why does the site include anti-kid legalese that none of its competitors has opted to include?
The answer, for now, will remain unknown. Google's PR people toe the company line, and its lawyers, well, remain lawyers.
UPDATE 3-15-08 12:20 p.m.: Some of the information in the story is found in YouTube's Frequently Asked Questions section
Before you start building new applications around YouTube's video player, it might be wise to check out the Terms of Service agreement and the Frequently Asked Questions section.
It has a lot to say about what you can or can't do--particularly when it comes to any thoughts of making money. First up, the No.1 video-sharing site says plainly "the intent of the API is for noncommercial use. "More specifically, the TOS prohibits using the application programming interface for the "primary purpose of deriving revenues...such as advertising or subscription" services.
YouTube, which expanded its API on Wednesday, goes on to say that it's permissible to use the API to show YouTube content on an ad-enabled blog or Web site, just as long as they aren't "comprised solely or substantially of YouTube video content."
Not surprisingly, the Google-owned site doesn't want anyone else making money off its content--especially competitors. But how much video can a commercial site post before it's too much? What exactly does "substantially" mean?
There's more.
Under the "Commercial Use" section of the TOS is this item: "The sale of advertising, sponsorships, or promotions targeted to, within, or on the API Client or YouTube video content" is prohibited without YouTube's permission.
A YouTube representative declined to comment.
What this means is that users can't insert advertising into the video or the player. And the YouTube player comes with the YouTube logo overlay. This, too, should also come as no surprise, said Roman Arzhintar, CEO of SideReel, a video search and community site.
"My guess is that YouTube is going to try and offer ads through that player itself," Arzhintar said, "by including code inside of it that will pull ads from Google."
YouTube allows people to use its player. Why shouldn't the company make a buck by delivering ads?
But besides being vague and perhaps over-broad, the language in the TOS is perhaps too restrictive for some commercial sites, especially when there are plenty of places to acquire white-label, third-party players that allow them to include their own advertising and branding.
What this means is that YouTube's player will still be the choice for individual bloggers and smaller businesses that supplement their content with videos and don't mind YouTube's branding and ads. For you in-betweens, better read the fine print.
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