Read a Good (or Bad) EULA or Terms of Service Lately?

Read a Good (or Bad) EULA or Terms of Service Lately?

Does Anybody Read EULAs and Terms of Service Agreements? You Do! 

Does anybody read end-user license agreements, otherwise known as EULAs? We found out recently that Apple Computer doesn't, as it let its Safari 3.1 browser for Windows ship with a EULA that prohibits any computer other than an Apple-labeled computer from running it.

That was a simple oversight, but when Adobe introduced its new Photoshop Express web-based photo editing and hosting software, sharp-eyed readers of this website discovered the following in Paragraph 8a of Photoshop Express' Terms of Service agreement:

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 (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed. [emphasis added]

Reader sc123 led the charge against this rights grab on the Maximum PC site (see the comments thread on the original article), and he wasn't alone. As Macworld.com reports, Adobe has received a lot of grief over this paragraph, and is going to be changing it soon.

Photobucket vs Adobe

Several readers suggested Photobucket as an alternative to Photoshop Express for photo sharing, so I thought it would be interesting to take a look at Photobucket's terms of service, specifically paragraph 3:

Photobucket does not claim any ownership rights in any User Content that you choose to post to the Site. After posting User Content to the Site,you continue to retain all ownership or license rights in your User Content and you continue to have the right to use your User Content as you did prior to such posting. However, by posting or making User Content available through the Site or via the Services, you hereby grant to Photobucket a nonexclusive, royalty-free, transferable, worldwide license to use, copy, modify, prepare derivative works from, distribute, publicly display and publicly perform (whether by means of a digital audio transmission or otherwise) and process your User Content, or any part of it, solely on and through the Site and Services, including without limitation (a) adapting the format of your User Content (for example by encoding or transcoding) for suitable display on the Site; and (b) displaying, in Photobucket's sole discretion, your public User Content in search results generated by the Photobucket search engine. In addition, where you have made your User Content public, posted a link to your User Content on another website or otherwise shared a link to your User Content, you grant to Photobucket a nonexclusive, royalty-free, worldwide right to sublicense the right to copy, modify, prepare derivative works from, and distribute your User Content as necessary to perform the Services, including without limitation the printing services offered by Partner Sites. In connection with the above license, you provide your consent for Photobucket personnel, including Photobucket contractors and service providers, to view your User Content at any time for the purpose of providing the Services and filtering content that violates this Agreement. You acknowledge that you are solely responsible for all Content you submit to the Site or provide to the Service. You represent that you either own the User Content or have the rights necessary to grant Photobucket this license.

Photobucket's licence agreement, like Adobe's, has too much legaese for the average non-legal reader (including this author), but it makes an attempt to clarify what the legalese means, unlike Adobe's now-notorious Paragraph 8a. And, unlike Adobe's terms of service, Photobucket's terms of service don't include any claim to "derive revenue or other renumueration from" your photos. That's the big sticking point for would-be users of Adobe Photoshop Express - and hopefully the legal eagles at Adobe will strike that clause from the revised terms of service agreement.

It Pays to Complain

As Adobe's promised about-face on Photoshop Express' terms of service suggests, it does pay to complain, rather than to swallow hard and click OK to sign off on an unjust EULA or terms of service agreement. Don't forget that Windows Vista users' complaints about activation problems inspired Microsoft to drop Vista RTM's reduced functionality mode for unactivated copies in favor of visual reminders to activate (or get a legal copy of) Vista SP1. You have the power!

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mortar

I'm glad Adobe's changing 8a. There's some changes I'd to see them make to their Production Studio suite EULA.

Having said that, If your willing to post material on a publicly accessible forum, then you better expect that work is most likely going to end up on someone else's computer, private or commercial. Admittedly, I've snatched a few pics from various public photo sites for use as wallpaper, and I know at least one of my pics I posted on Flickr is now adorning a wall somewhere in Second Life. No big deal. You post pics because you WANT to share them with others. If your looking to profit from your photos, then you'd be an idiot to UL them to a public service. Personally, I'd be happy to see my pics used in some official way. That says it was interesting enough to warrant their attention.

Now, what about pics that you've made "Private" on a service, if such an option is available? Well, that's a different story. Your using their service, but they're NOT to be shared, which, to me, also means they can't be used by the service for their own purposes.

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mrvander

The key word seems to be "However..." It seems to always follow language that grants us as the user some rights regarding the service/software. In Adobe's Paragraph 8a, they say "oh, we won't even claim to own it" then the "however" hammer falls and leads to "but we can certainly do whatever we wish as if we did own it." (paraphrasing of course.)

Watch out for "however".

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damicatz

EULAs are not automatically valid in a court of law. People seem to be under the impression that EULAs are some kind of legal holy grail where everything that's written in them is sacred law.

In particular, there is something called unconscionability. An unconscionable contract is a contract this is deemed to unfair to one party that the court refuses to enforce it. Part of the Second Life EULA was thrown out for this reason.

Generally, contracts that use a lot of boilerplate language or that leave little room for negotiation fall under this category.

See : http://en.wikipedia.org/wiki/Unconscionable

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Sonickid101

Thats because us Americans nowadays are so content to give up our freedoms and rights to corporations and governments without so much as a whim. Things like the DMCA and this all fall into the same category of people sacrificing their rights because they're too lazy or too unwilling to sit there and read a boring paragraph here and there and to do something about it. To protect their rights and freedoms. Too long has the EU and its citizens been fighting the corporations for our rights for us. Us Americans need to read between the lines and stand up for ourselves too.

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Keith E. Whisman

Whatever happened to the negotiable contract? Here your using their service with your pictures and they claim all the rights to do with it what they will. The consumer has little to no rights in the license. Yet when I install a software program on my PC the license agreement usually just barely grants me permission to use the software. Look at music CD's. I buy a music CD and rip MP3's and I as the consumer even after buying the music have very little more than permission to listen to the music. I can't even watch a football game with out the warning to not discuss the football game. And that's on regular non cable television. Consumers no longer have any rights. The US dollar does not get us much anymore.

I suggest that EULA's allow for editing and submission back to the author for negotiation. Keep things a little more fair. Or just don't make such greedy and outlandish EULA licenses.

BTW what's next? Are camera manufacturers going to start claiming possession of pictures that are taken? How about restrictions to what you can do with pics that you take with their camera? It's only going to get worse. It's been bad for quite some time now but it's been like a ladder and it's getting worse.

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