robotface

Robot Face

@robotface

  • they/them or anything else idc

I'm not a real robot, but I have a real face!

25, bi, genderless.

log inask
itch
robotface.itch.io/
robotface
@robotface
IkomaTanomori
@IkomaTanomori
mcc
@mcc

The Cohost TOS IP provisions are an actual problem

There is a little ritual that happens on all social websites. Someone will notice the IP licensing language in the ToS, and freak out¹. Then the entire site will freak out. Then after a day or so someone familiar with website operation will exhaustedly write a response post, explaining that IP licensing is necessary and that all UGC websites have similar language. Then the entire site will calm down. The interesting thing about this ritual is that the first part, the freaking out, happens regardless of whether the IP provisions are actually onerous/dangerous; and the second part, the calming down, also happens regardless of what the IP provisions actually say.

I am not a lawyer. However I believe I know enough to parse a TOS, and I believe not all IP provisions are equal. I think some are reasonable and some are not.

And unfortunately, I specifically believe Cohost's IP provisions are problematic or even dangerous. I don't believe these terms were chosen maliciously, but I believe they should be changed.

The relevant provisions are in the Cohost terms of use. As of 2023-Jun-27 they read:

ASSC requires licenses from you for that User Content to operate the Services. By posting User Content on the Services, you grant ASSC a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your User Content.

In this post, I will overview the comparable TOS provisions for other Cohost-like social sites. What I will argue is all comparable social IP terms either are much more limited in scope than Cohost's, or are expansive in the same way as Cohost's but contain a termination provision where a user can choose to discontinue the IP license in extreme circumstances. (There is one exception— Twitter— and I will argue that the Twitter IP provisions are also a serious problem.) I will also briefly cover Cohost's responses so far when I have contacted them about this.

I do not think there is anything you need to be worried about right now. I view this as a long-term problem.

IkomaTanomori
@IkomaTanomori

Good journalism, well worth the read.

This is not so much purely "Cohost has a problem," and more "IP law based on ownership and profit motive assumptions is a whole mountain of problems." Until and unless we can shift common sense to a usership/stewardship model instead of ownership, though, and as long as the profit religion dominates the world, we have to deal with the problems of that garbage mountain. Kudos to the author of the above for making a thorough investigation of the state of things.

You must log in to comment.

in reply to @mcc's post:

kda
@kda

Seconding this. I've been hesitant to publicly raise any issues with the ToS in the past due to the usual context of people's commentary on it, but this is a good analysis, so thank you for putting in the effort to write it!

login to reply
lori
@lori

People tend to get this weird idea that if someone makes a bunch of claims, and some of them are ridiculous and wrong, that by default the opposite of everything they said must be true. There were both true and extremely false statements about the TOS going around the first time this came up, but some people took the fact that some of it was false as proof that all of it was false and therefore there is no problem whatsoever and anyone who claims there is is wrong.

The internet is exhausting.

login to reply
kda
@kda

I saw a lot more "the ultimate thrust of (insert specific widely shared thread here) is in a dishonest direction" than "every single element thereof is categorically 100.000% wrong", really, but yeah, the… …arms race kind of attitude online makes it a lot less nice.

Not as if there's any unilateral action that could mitigate it, but. ☠️

login to reply
lori
@lori

I mostly saw it in a more mild form than what I said in this case, which was "oh good people are saying the complaints about it are unfounded and bad faith, now every time I hear someone say there's a problem I will simply tell them there's no merit to the complaints even if it's a totally different person coming from a totally different place, because I've already written the whole thing off as fake in my mind."

login to reply
xkeeper
@xkeeper

edit: the "mastodon terms may auto-license everything users post under cc-by-nc" was based on something unrelated and does not actually exist. that said,

for the record i do not think mastodon (or anywhere) having a license that explicitly turns things you post into CC-BY-NC is good on any level, especially in a world in which we still require money to live

imagine posting any sort of commercial artwork or design being done and oops, sorry, what you thought was a license to the website to let them host it becomes a license to freely copy and reshare it anywhere, for anyone. i would sure be mad as hell if i spent a lot of time or money on something and ended up accidentally saying "oops, all of that? yeah nevermind it's free to share and fuck around with as much as you want with no other restrictions LOL!"

if anything that would make me want to share things on mastodon even less

login to reply
mcc
@mcc

It's really weird. If I were going to do this on a server/service I'd have had it as a big bold warning on the user signup page. In the meanwhile, I actually have avoided posting certain things on Mastodon since learning about this, while I've been trying to figure out how to raise the subject publicly.

Do note I cannot, at this moment, prove that the Mastodon TOS term in question ever existed at all.

login to reply
xkeeper
@xkeeper

yeah, which is why this is written as a hypothetical if ... then ..., since if it actually was confirmed i imagine that would be its own, considerably less nice piece of writing

login to reply
robotface
@robotface

I mean... How else could that possibly work on a federated social media platform? Any site running on activitypub needs to be able to have your posts boosted on it, just licensing it to the site you sign up for isn't enough. And you can't possibly enter a contract with every single mastodon/pleroma/etc instance ever created.

login to reply
xkeeper
@xkeeper

there is a slight difference in nuance between "a service and yourself agree to limited conditions in which your work may be reproduced, to make the service function" and "you, personally, can now copy and paste this anywhere as long as you aren't making money and you acknowledge who the author is"

login to reply
mcc
@mcc

One issue with this line of reasoning is that if the basis of shareability in the fediverse were CC-BY-NC, then would this mean that running a for-profit Mastodon server is barred?

Anyway, in the absence of a specific copyright framework Fediverse posts are shared via, a court would probably be able to find some sort of implicit license conditions exist via the actions people took and failed to stop others from taking over time, or "laches" or something. Or maybe a court will just one day declare ActivityPub is literally illegal since nobody granted explicit permission to mirror their posts.

login to reply
xkeeper
@xkeeper

you're right, rather than even pretending that artists or creators have rights we should just throw all that into the wind because it only ever benefits the most powerful players. dogshit level take. put it back in the oven for a few hours

login to reply
xkeeper
@xkeeper

and it's cool and good that you do not give a shit what happens to works you make. great! i also license most of the stuff i make under cc-by and mit

there is a very, very, very large difference between "i don't care because it won't matter for me" and "i don't care so it shouldn't matter for anyone". you were not writing your post as just about you, it was a very direct reply, to me, about the nature of licensing works, copyright, and theft, and how you think none of it matters for anyone

login to reply
Renpona
@Renpona

the idea isn't really to stop people from copying and resharing your stuff on social media. rather, it's a bulwark against someone putting your work in their own for-profit project

if someone rips all your art without a license and puts it in their own videogame, and then the game becomes a cult hit and makes fifty million dollars, you can sue them for it. even if they're a big corporation

login to reply
ireneista
@ireneista

thanks so much for this

good call on starting it out with an explanation of the reactive ways this tends to get discussed and why that's a problem. we're hopeful that focusing on it as a long term thing to improve, rather than a cause for immediate fear or anger, will be more productive.

we read through the whole thing but we'd have to go much more slowly and carefully to really vet all the legal language. we also are not lawyers, but we're, you know, a programmer, so we've been seeing intellectual property clauses of one kind or another for our entire career and we do have opinions on them.

for all the parts that we did manage to spend ADHD points on, we agree with your interpretations. for whatever that's worth.

login to reply
boredzo
@boredzo

There's actually an even worse provision in the same terms. The one you cited, at least, is a license; folks can have their opinion on whether that's a reasonable license or not (I would certainly not mind if it were dialed back a bit), but at least I still keep the copyright on my own stuff.

This part concerns me more:

Contents and Ownership. Except as otherwise expressly indicated herein, ASSC owns all rights, title, and interest, including all intellectual property rights, in and to, the Services, including without limitation all Merchandise, Feedback, images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information and screens appearing on the Services, and other materials, as well as names, logos, taglines, trade dress, and other trademarks therein) on the Services (collectively, the "Contents").

Now, IANAL either. And I'm sure this was meant to mean that all of Cohost's icons and any other Cohost-created IP—photos of eggbug merch, promotional videos, that sort of thing—are in fact ASSC's.

But when I read it strictly literally, “images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information and screens appearing on the Services” includes anything anyone posts. ASSC owns it all.

I post a lot less on Cohost than I would otherwise precisely because anything I post here is, by my reading of the TOS, no longer mine.

login to reply
mcc
@mcc

I do not think this is a reasonable read of the TOS. "Except as otherwise expressly indicated herein" would seem to clearly exempt "User Content" from section 11, since "User Content" (section 6) is its own specifically addressed clause (and is therefore "otherwise expressly indicated herein"). So I'm not a lawyer either, but your read aligns neither with a naive computer-like legal reading of the text or with the obvious intent of the text. Even in a worst case scenario if this went to a judge and a judge had to figure out if the worst-case reading (section 11 covers user content) applies, the inclusion of section 6 would seem to indicate the worst-case reading is against the intent of both Cohost in originally offering the contract or the users in accepting it. Cohost's Nov 2022 changes also might (???) establish intent in a way that limits Cohost's legal rights here, since they have made moves over time to remove text that could ambiguously allow them to take ownership of User Content broader than section 6.

I think it is unambiguous that user content copyrights on Cohost are governed by section 6 and section 6 alone.

login to reply
boredzo
@boredzo

Thank you. That makes a lot of sense and helps relieve my own concerns about Cohost's TOS.

Like others have said, I thank you for both raising this issue and starting (and continuing to facilitate) this discussion in such a careful manner.

login to reply
Renpona
@Renpona

as far as I can tell, the Mastodon stance on TOS is "we're not legally required to have a TOS, and that suits us fine since none of us want to go through the trouble of talking to a lawyer". they copy-pasted their privacy policy from Discourse

there have been a number of TOS proposals made in their Github, ranging from "make all posts CC-BY-NC" to "let users specify the licensing for each individual post they make", but none of them have been adopted or drawn much interest

login to reply
Queso2469
@Queso2469

I'm super curious about how not having a license works for them long term. I suspect it might actually be alright. The law isn't exactly useless when it comes to handling ambiguous licensing situations. They happen all the time out in the real world.

For a contrived example: I tell you to go post this flyer all over town and you make copies of the one I handed you. I can't go and sue you for copyright infringement. There's an understanding of what was allowed even though it wasn't explicitly written. But I would have a case if you started to try and sell the rights of my poster for a movie adaptation :P

As far as reasonable users would understand, by posting on a social media service, you are allowing that service to distribute that post to other people. The scope of that agreement is definitely ambiguous, but there are also definitely things inside and outside of the agreement. And I don't think the ambiguity will even necessarily be that bad for Mastodon since the things it does are pretty well outlined. If they start doing more with that content. like for example putting it on a billboard, I think they would have a hard time defending it against lawyers.

But this is admittedly very amateur speculation. I work in games where contracts are a mess because nobody can even define what a game is and what the parties involved are actually paying for during development and so much of the questions around transformations of various forms of content (ie streaming gameplay) are completely untested in court and nobody wants to find out. Ambiguous and untested license situations are often to this industry's advantage, so that's probably coloring my view.

login to reply
ertchin
@ertchin

A thoughtful and reasonable warning, with obviously a lot of effort put into researching it--you love to see it. Thank you.

Extremely minor question/possible correction: would the Twitter billboard campaign you're remembering possibly have been in the mid-'10s? Twitter (or twittr) was barely up and running in the mid-'00s.

login to reply
Pinned Tags