Posted by Admin Saturday, March 24, 2012 5:32:00 PM

by Amy Padgett

Many thanks to Amy for researching and writing this blog post! (When originally posted in July 2009, Amy was a Summer Intern at the firm and law student at Oklahoma University.)

Most of us have done it — we have posted, watched and shared photos and video content on popular websites such as Flickr, YouTube, Picasa, MySpace and Facebook. Most, if not all of us, who post content simply click through the obligatory “I agree” sections when setting up a user account on one of these websites. But, you should actually read and understand the terms to which you are agreeing. If you don’t, then you won’t be aware of the rights you are granting these sites with respect to the content you post.

In order to protect your rights in your content, you should thoroughly read the Terms of Service (also known as Terms of Use) and the Privacy Policy for each website before you upload content to a site. These terms are typically found on the home page of the website and are easily accessible. The Terms of Service (TOS) language grants the website a license to use the content you post. Once you understand to what you are agreeing, you can make an informed decision whether or not to create a user account and to post your content on a particular website.

The TOS are somewhat similar from website to website. As an example, let’s look at Picasa’s TOS (Picasa is owned and operated by Google). Picasa is a website to post your pictures for viewing by others, such as family and friends.

Section 9.4 deals with Proprietary Rights and states in part (emphasis added):

Other than the limited license set forth in Section 11, Google acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

What this means is Google claims no ownership of or intellectual property rights to the content you post. This is good and in your favor. However, Google does require that you grant Google a license to the content you post on Picasa. This license gives Google permission to host, post and display your content on Picasa. Without this permission, Google could potentially be infringing your copyrights in your content. The license protects Google.

Section 11 of the TOS contains the license that you are granting Google by posting your Content on Picasa. The license states (emphasis and parenthetical comments added):

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. (This is good—you own your stuff.) By submitting, posting or displaying the content you give Google a perpetual (forever), irrevocable (you can’t cancel the license), worldwide (everywhere), royalty-free (you don’t get any money), and non-exclusive (you can let others use your stuff, too) licence [sic] (Google’s misspelling in original) to reproduce (copy so they can post it), adapt, modify, translate (manipulate as needed to post it, such as technical requirements for file type and size), publish (post it), publicly perform (play your video, for example), publicly display (post your picture) and distribute (make available to others, such as visitors to the Picasa site) any Content which you submit, post or display on or through, the Services. This licence [sic] is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this licence [sic] includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services. (This enables Google to legally make posting of your content possible through its business relationships with third parties, such as a hosting service.)

What all this means to you is that by posting your content on Picasa, you grant Google the right to make your photos and video available for viewing by others. You can control whether your photos can be viewed by the public at large or by invitation only. Usage limitations that you control are usually addressed in a website’s Privacy Policy and/or user account settings.

In addition to thoroughly reviewing the TOS you should also read each website’s Privacy Policy before positing content on a site (typically found on the home page or through a hyperlink within the TOS). A website’s Privacy Policy describes the type of Personally Identifiable Information (PII) that the site will collect from you and its policies for using the PII. Typically, you voluntarily provide the PII to the site by entering your name, e-mail address, etc.

Although websites cannot completely guarantee privacy, as no security measures are perfect, one way you can protect and control the content you post on various sites is to ensure that the content is posted in a private setting. This can be done by adjusting the privacy settings on your account and by avoiding posting images and video in public areas of websites, such as chat rooms and message boards.

Many websites have privacy settings that you can control. For example, on Facebook, a user can log into his “Profile” page and make all content posted visible to “only friends.” By adjusting the privacy setting, the Facebook user can limit the accessibility of his content in cyberspace.

Websites frequently change their Privacy Policy and TOS, so it is a good idea to periodically check these sections of the website to see if any material changes have occurred since your initial agreement. Only you as the content owner have the ability to protect yourself, your images and your videos by understanding to what you are actually agreeing when you click “I agree” to a website’s TOS. If you don’t agree with the TOS, then don’t create an account. That’s the only bargaining power you have. Once you click “I agree,” you are legally binding yourself to the TOS. But remember: you have the power to decide with which TOS and Privacy Policies you are comfortable and you have the option to choose on which sites to post your content.


© 2009 BL Speer & Associates

BL Speer & Associates
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