Friday, August 22, 2008

What do I mean, "explicitly sign away"?

I previously said that one of the features of good online data storage is that anything you put there belongs to you unless you explicitly say otherwise (or perhaps better, storing something in the cloud doesn't alter the rights to it unless without specific instructions otherwise).

But hang on. The usual yada yada that everyone just clicks on to get to the good stuff generally contains very specific statements about rights to data. And you specifically clicked on that, right?

Legally (and keeping in mind that I'm not a lawyer), yes, accepting the yada yada commits you to whatever it says. So this isn't a legal matter. It's a matter of customer service until some regulation on license agreements says otherwise.

The point is that the usual yada yada really consists of two things:
  • Stuff most people care about (or should), like what sorts of activity are allowed or prohibited, and who has what rights to what data.
  • Stuff most people don't care about, but lawyers do, like governing law (what state or nation's laws apply), severability (if one section turns out to be legally unsound, the rest still stands), whole agreement (these are all the rules of the game; in particular, older versions of the agreement don't count) and so forth.
People like to brush off the second category as "legalese", but every clause is there for a reason, generally because there was an ugly dispute over the issue somewhere in the past. There are very seldom any winners in an ugly legal dispute.

Ideally, provisions in the first category would be shown prominently, with concise headlines and clear explanations under the headlines, and there would also be a clearly labeled link for "other legal considerations" (or "our lawyers made us put this here" or whatever). When I said "explicitly sign", I was imagining a situation where the "important" clauses were presented prominently and not mixed in with the "other legal considerations", as they often are.

It's still your responsibility if you accept an agreement that's unfavorable to you. This is really just about clearer signposts. I should also say that, as far as I can tell, most vendors make an effort to make license agreements painless and many make an effort to point out clauses that might be surprising. I don't think license agreements are in desperate need of overhaul or that the vendors' lawyers are out to get us. But there's always room for tweaks and improvements.

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