Was curious about a web site's terms of use and what their policy is on your content and....

it seems as if they OWN EVERYTHING you put on there. Your photos, your text, the emails that come thru their system....all of it! I'm attaching the screen grab so you can read it for yourself (middle paragraph).

Now your web text is probably never going to be an issue- but photos of half (or fully) naked chicks- there's totally market for that.

I don't know if there have ever been any of the worst case scenario issues from this- but I know a lot of ladies use their sites and probably don't realize they have just given them the right to use their content- any of it- as they so choose- without notifying you or compensating you.

I'm no lawyer so please correct me if I'm way off base about this.

(this post has been modified to remove site name and attached copyright material which is not permitted by TER rules, however the question is still clear--sorry veronica)

-- Modified on 5/13/2010 5:51:51 AM

My understanding is that case law is still up in the air.  The problem is that the law itself is WAAAAY behind the electronic landscape.

For example, I understand that there is currently a lawsuit against the cell phone company VirginMobile by a teenager in Dallas.  As I understand the case, she was at a school-sponsored event - a car wash - to raise money.  She was photographed with her friend by a photographer.  The photographer put that photo, among others, on  Flickr with a general "license to use" as long as he was credited.  An advertising company in Australia saw the photo on the photographer's site and like it.  The next thing anyone knew, the photo was being used in a VirginMobile ad campaign.  What's worse is that the friend was cut out of the photo.

Here's where it gets truly weird.  A Flickr subscriber in Adelaide Australia saw the ad, liked it, took a photo of it, and posted it, where else?  On Flickr where the original teenager saw the photo and discovered that she was suddenly a model!

She is not suing over copyright law but violation of the right to privacy.  No one here actually broke copyright law - the photographer owned the rights to the photo, they were placed on a site where he licensed their use as long as he was credited, the ad company used the photo and credited the photographer.

But, I imagine the teen still feels violated.  if you want to look at this case more, it's Chang v VirginMobile USA

VirginMobile is under attack for other reasons too.  They have a facility where if you take a photo on your cell phone, you can email it to someone else through their system.  The photo never actually appears on their website or in any publicly accessible place.  VirginMobil puts THEIR logo onto the picture before it delivers the photo to your contact.  This particular case has a lot of things involved:  
   - You are the owner of a photo you take with your cellphone and have all rights to it.
   - VM is violating those rights because they are modifying the photo without your permission.
   - VM is violating your rights and your contacts rights by opening the mail message and modifying it thus invading the privacy of the message.  Think of it like the Post Office opening your letter to a friend, reading it, modifying it, putting it back in the envelope, sealing it, and then delivering it.
   - When you get a cell phone from VM on a pay-as-you-go plan, you never sign a contract.
   - They have Terms of Service on their website that doesn't seem to apply but VirginMobile claims it does.
 

Both of these cases have far-reaching consequences on web sites, copyright law, contract law and more.

The Terms of Service that appear on sites form a contract.  But, those Terms of Service can be changed at any time by the website owner.  How can anyone, like say for instance a court of law, know what those Terms of Service were when you signed up for the service, or when you put your photos there, or when you think your copyright was violated.  The Terms of Service may have been changed many, many times.  Unless you read the Terms of Service every day, you'll never know when they changed because they are not under any obligation to tell you.  And the website will certainly appear in court with the latest version of the Terms of Service which you can bet will say that they can do what they've done.

As far as I know, the courts tend to side with the websites.  The website have the document that they claim binds you and it's impossible for you to prove that you never saw it, or never agreed to it, or whatever if you're using their service.  it's also nearly impossible to argue that the contract should not be enforced because unless the terms are unconscionable to a reasonable person, the courts will say "you knew what the terms were when you signed up so why are you crying about it now".  Ok, not those exact words but...

The cases mentioned above could well change the way the courts look at the Terms of Service.  But, until they are decided, the courts can only fall back on contract law which was formed centuries ago and did not contemplate the electronic age, contracts that don't have signatures but are still enforceable on both parties, and documents that can be changed in seconds if needed to say whatever the party changing them wants them to say at the time.

i've been through a couple of electronic copyright cases myself, and I'm going through another.  I don't, anymore, put anything online of any kind of value that I might want to use to make money with at some point in the future.  That's really the only thing you can do - if you put something online that can be stolen or used by someone else, it probably WILL be stolen or used by someone else. And, if a website owner thinks he/she can make use of your photos, words or whatever, they will and, at least for now, have every right to do whatever they want.

(Still not a lawyer)

There are several versions on the Net that archive web pages. Type in a date and you get the version of the webpage on that date. So that is one way to check.

    If you go to court there are annoying foudnation requirements but the Wayback Machine provides a helpful form affidavit that sometimes works.

       Copyright and contract are two very different creatures but, for purposes of contract liability,  it is a little misleading to say that the Terms of Service can be changed any time. While that is literally true, a change in terms of service does not bind a paying member of the website unless he agrees to the change and is given some new benefit.

      So  when I  pay TER $50 for a three month membership, if they change their terms to raise the cost to $100, that does not affect me until my 3 month membership expires and I can use the Wayback Machine to prove the terms of service when I paid if I did not copy them at that time.

Very informative response, Mr. French. I did notice that this same site (whose name was edited out by mods so I can't post it again) has the exact same terms listed you are referring to- that they can change the terms of the contract at any moment and not inform the user.

With how many ladies I know who value their photos and want to have control over them completely it seems to me that many would be shocked to know they just gave up all rights. And often they don't even have the right to give them up- they are copyrighted by the photog- not the lady.

It's a pretty widely used provider specific web template site.