Just a reminder: As Chris makes clear, he is not a lawyer. I myself would suggest checking with one if you have the slightest doubt. – D.R.
Legalese. Sometimes it seems as though we can’t escape it—even though we try. When we add new software or services, we’re deluged with dozens of pages of end-user agreements, which we have become inured to shrugging, scrolling to the bottom, and clicking “Agree,” trusting that the consumer protection laws that have sprung up over the years will protect us from anything too terrible.
The problem is that these agreements aren’t written in language we consumers are trained to understand. They’re written in scary legalese, which you generally need a law degree to interpret fully. And it doesn’t help that our sole interaction with it is usually to avoid exposure to it. That means that when you do get exposed to it, it can come as a shock—and be very easily misinterpreted.
There’s one clause in particular that nearly every online service has, that is so scary it invariably prompts shrieks of panic from anyone who runs across it—especially if the person who runs across it is someone who makes their money from their creativity. And that’s the Content Clause. Not the grammatical content clause, which is the subordinate clause that provides content implied or commented upon by its main clause, but the legalese one.
Case in point: I just ran across this blog post by Holly Lisle in which she mentioned a scary clause she had run across in Patreon’s user agreement that scared her so badly she had decided to close her Patreon down. The clause reads:
By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content.
This sort of clause is one of the most scary, and yet most frequently misunderstood, clauses in the user agreement of any online service that displays user content. It sounds scary, and all the more so to professional, traditionally published writers like Lisle, because terms like “royalties” and “derivative works” are things that they deal with day-to-day in the publisher contracts they sign when they publish their books. Let one of these writers come across the phrase “royalty-free” and they immediately think someone’s going to pirate their stories and not pay for them.
And that’s what Lisle seems to think is happening. In her blog post, she says, “Patreon is claiming rights to my novel.” She gets this impression from a blog post from law blogger The Passive Voice, who seems to think that Patreon is being squeezed for money and so might start leveraging those rights to make money off the back of user content in ways the users never anticipated or intended.
Now, Passive Guy is a lawyer, and I’m not, which means ordinarily he’s more likely to be right about things than I am. But I wonder if even he was confused about this matter.
This clause is scary because it’s written in confusing, obfuscating legalese, but from my understanding what it actually means is, “If you submit content you want us to display for you, you agree that we can have all these legal rights that we will need if we’re going to be able to display it for you without you being able to turn around and sue us for displaying it.”
In fact, if you go to the Patreon license page and look at it, the fuller context of the part Holly Lisle quotes makes that clear:
By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.
Literally every single service that displays user content you submit has something like this in its terms of service. Every blogging service, every social media, every instant messager or chat service, every anything that lets you upload something to their web site wants to protect itself for being sued from displaying copyrighted content. Remember, under the current US copyright regime, anything you set down in fixed form—any blog post, any instant message, any tweet—is automatically copyrighted, and hence, needs the grant of those use and derivative rights for a service to be able to use it legally. And sometimes it seems like every other month someone discovers this clause and gets upset because they don’t understand it and it seems scary.
Here’s an explainer of one such clause for the chat service Discord. It does a really good job of unpacking every bit of that contorted legalese, and while its explanation is pitched toward how it displays content through its chat service, it would apply equally to a social media service like Facebook, or a blogging and media posting service like Patreon. If Holly Lisle were to stop using every service that had such a clause, she would practically need to isolate herself from the entire Internet.
Now, it might very well be that these rights the services require means that, legally speaking, they could lay that kind of claim to the content, even if that’s not why they’re asking for them. Maybe such rights grants are all-or-nothing. I’m not sure; I’m not a lawyer. But if it is true, there’s a problem, because so many services use such clauses that people are unwittingly giving their rights away with everything they do.
If you take the Discord explainer and the Patreon quote at face value, they don’t actually want the rights for those purposes. They only want enough rights to be sure that they can serve the purpose their users are using them for: showing to other people the stuff that users post so it can be seen by other people. While it is fashionable to believe that big business is inherently evil (Google’s well-intentioned motto was “Don’t be evil,” until they themselves grew into one of the very companies the motto inveigled against), it’s hard to believe so many businesses would be malfeasant in the exact same way.
Legalese is so stark and ominous because it has to leave no room for interpretation—a right has to be called out and defined specifically, because opposing lawyers will happily seize on the slightest bit of ambiguity to extract whatever rights they can out of it. But in leaving no room for interpretation, it leaves a lot of room for misinterpretation, because the terms are so very simplified that they cover a whole range of potential uses—including ones the contract holder doesn’t even necessarily want.
In any case, I expect this scary bit of legalese to continue confusing and scaring everybody who encounters it—possibly even including lawyers. If someone can come up with a less scary way to phrase it while still leaving out that ambiguity, I’d certainly like to see it.
Again, I’m not a copyright lawyer, so it’s possible I could be wrong about this stuff—but if those content clauses were really so scary, it doesn’t seem like the entire social Internet would be able to continue using them and still keep all their users.
teleread.org 
Hear, hear. I just have a couple of things to nitpick: one, people have little choice but to use these services if they want to be at all visible; two, we’ve heard similar arguments about data collection, and then it turned into a massive enough problem to threaten the fabric of modern society. If you don’t need those rights, don’t ask for them. And all these services claim the right to reproduce and display your work *in perpetuity*. I.e. NOT just until you stop using the service. This is not fine.
Of course, the real problem is copyright being vastly overreaching nowadays, AND systematically interpreted in the way most favorable to corporations. But nobody seems willing to attack this underlying cause, now do they. Because capitalism is sacred and
creators, er, predatory publishers, “need to be paid”.LikeLike
Even if the service removes all your content from your own account when you leave, if your message was quoted in someone else’s content that’s still a derivative work, and means stuff you wrote is still up on their site. And they want the right to be permitted to still display that without getting sued, so they don’t have to go through and yank every quote of your content in addition to just turning off yours.
At least, that’s what I would guess. As you say, the real problem is that copyright has grown so complex that if they don’t ask for these rights, they potentially open themselves to being sued for doing the thing that they were being used for in the first place.
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I’m a retired lawyer. From a legal point of view, I think that Passive Guy’s concern about how the terms might be read by a judge, based on the rules used to construe the meaning of contracts, is well-founded. In addition to what PG says, I find the words “perpetual” and “irrevocable” to be very troubling. They mean that whatever the rights which actually conveyed to Patreon, the creator can’t withdraw them. This is inconsistent with the idea that the rights being conveyed are “really” only for the purpose of letting Patreon provide services to the creator, but entirely consistent with PG’s interpretation.
In short, assuming that Patreon is only trying to do what you think it is trying to do, it’s a very poorly drafted contract. Of course, if I recall my contracts course correctly from nearly 50 years ago, since the contract is a “take it or leave it” contract (technically, a “contract of adhesion”) written by Patreon, another rule of legal construction is that any ambiguities will be construed against the party that wrote the contract.
Probably, as a practical matter, your reading is the way things will fall out. It will take only one instance of Patreon even attempting to profit directly from someone’s creative content for its whole business enterprise to collapse.
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As I read it, you are awarding the company the unlimited right to compile content into an ebook anthology which can be sold without giving an obligation to offer any kind of royalties to the content owner. Perhaps this is not the intent of Patreon, but I would at least seek a clarification.
If I remember, even Geocities used to include those blanket-style rights grabs.
I understand the concern here — for user generated content (UGC), the company needs indemnity against third parties stealing/reusing content. But if it’s perpetual, it’s only natural to expect the content to be resold in ways that can’t be anticipated.
A similar issue is terms of service for blog comments. Do site owners have the right to reproduce comments into ebooks?
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The real problem with Patreon’s (and similar) clauses is that it uses general terms without limiting them to their required or intended context. For example, the Patreon clause says “prepare derivative works.” As a general term, that’s wide open; Ms Lisle’s concern is not directly on point, but related: As written, it would allow preparing a derivative work of what is posted to Patreon, which might include a fan-generated “novel” based upon the description of her novel that is actually posted to Patreon. (Probably a novel so awful it would damage Ms Lisle’s reputation and other works, possibly leading to reverse-infringement actions if one of Ms Lisle’s later works appeared to use something so prepared. It has happened, and I have clients who’ve been in that situation — even largely pre-Internet. In one instance, it blocked a high-seven-figure media deal because the media company got scared off by the FUD.)
Instead, though, the “geniuses” with marketing backgrounds and insurance backgrounds who are behind clauses like this want to maintain maximum flexibility, because someone just might come up with a Brilliant Idea* for using this content for some other marketing or monetization purpose. They refuse to limit the nature or purpose of the derivative works to be prepared (such as listing them in the next paragraph, limited to, say, “revisions of Our webpage design and structure, direct transfer and adaptation to another medium or method of transmission by Us, and use of abridgements and extracts in advertisements and samples for the purpose of publicizing Our product”), because they’re scared to death of what happened with motion pictures and television. So — largely in bad faith — they grab much more than they need, than they intend to use, than they can use, just to be “safe.”
Everyone has reason to be concerned about this sort of sloppiness. There’s historical precedent for both Ms Lisle’s concerns and the hypothetical marketing concern (take a look at the history of movie posters and album covers as displayed on Compuserve, Genie, and AOL…). But the completely inappropriate response is a TOS filled with bad writing informed by paranoia. Bad Patreon, no third-party tracking cookie.
The secondary cause is overemphasis on stealth monetization opportunities. But that’s about the evolution of the ‘net as a whole more than it is about TOS clauses!
* Reference to Baldrick’s brilliant ideas in Blackadder is entirely intentional… and probably tarnishes Baldrick.
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Note that Patreon has updated its license terms and FAQ on the matter to make clear that “The purpose of this license is strictly limited to allow us to provide and promote memberships to your patrons. We will never try to steal your creations or use them in an exploitative way.”
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