Don’t be evil – unless you can hide it in the Terms of Service legalese no-one ever reads

Posted on September 2, 2007

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If you publish your photos online, you’re understandably giving up some amount of control over those photos. Everyone and their uncle can copy and modify the photos, and while you have some amount of copyright protection, that protection is limited. But some online photo companies are moving beyond that and are claiming rights to your copyrighted photos in their terms of service even if you never publish the photos online. Photobucket does it (section 3 of their TOS), but so does another company: Google.

Specifically, if you read down the Picasa Web Albums TOS to section 4, “Proprietary Rights,” you’ll find this lovely gem:

You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Picasa Web Albums and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Picasa Web Albums, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, adapt, distribute and publish such Content through Picasa Web Albums, including RSS or other content feeds offered through Picasa Web Albums, and other Google services. In addition, by submitting, posting or displaying Content which is intended to be available to the general public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, adapt, distribute and publish such Content for the purpose of displaying, distributing and promoting Google services. Google will discontinue this licensed use within a commercially reasonable period after such Content is removed from Picasa Web Albums.

In other words, in case these aren’t clear enough, you retain patent, trademark, and copyright and are responsible for protecting those rights, but Google has the right to use your patented, trademarked, and/or copyrighted work free of charge if you simply use Picasa Web Albums for storage and tagging of your photos, regardless of whether or not you choose to publicly display the submitted photos.

And if you look through the Google TOS, the other TOS that you agree to abide by in order to use Picasa (the very first paragraph of the Picasa TOS says so), you’ll read similar language.

By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.

Note, however, that the regular Google TOS is worse than just the Picasa TOS – here the right to use your content is perpetual and irrevocable, meaning that Google can use your stuff forever even if you ask them to stop.

Given that the main Google TOS and the Picasa Web Album TOS contradict each other, which is legally binding, the one that says Google can use your copyrighted/patented/trademarked content forever and there’s nothing you can do about it, or the one that says Google will stop using that content “within a commercially reasonable period after such Content is removed”? I imagine that a lawyer acting on a complaint against Google could have a field day with Google in court over this one.

Of course, considering that we’ve got a five page (printed) Picasa Web Albums TOS and an eight page Google TOS, we’re not done yet. Not by a long shot.

Section 2 of the Picasa TOS says “You agree that you are responsible for…any Content that you create, transmit, or display while using Picasa Web Albums and for any consequences thereof.” But wait a minute – Google claims no ownership of your pictures and you retain the responsibility of anything that happens as a result of your photos, but Google still has the right to duplicate or modify your photos in order to make money off the free services you’re getting from Picasa. But doesn’t this mean that you could potentially be held liable for any complaints made against Google by a third party because Google used your photos? And maybe it’s a bit extreme, but the logical extension of this kind of responsibility could end up with Google legally having the right to charge you for the costs Google incurred by their use of your copyrighted photos in a failed marketing campaign. And the Google TOS has this provision too (section 8.5), but with an added kicker: “…you are solely responsible for any Content that you create, transmit, or display while using the Services and for the consequences of your actions (including any loss or damage which Google may suffer) by doing so. (emphasis mine)” That sure sounds like you could be held responsible by Google for their court losses if they get sued, and could be held responsible for any loss of profit due to failed marketing that used your photos. Lovely.

Nearly every online service has a provision that lets the supplier cancel your service without notice, and the Picasa Web Albums TOS is no exception. Section 9 says:

You agree that Google may at any time and for any reason, including a period of account inactivity, terminate your access to Picasa Web Albums, terminate the Terms of Service, or suspend or terminate your account.

Ok, fair enough, and hardly a surprise. But when you add to it the next sentence, we have a problem.

In the event of termination, your account will be disabled and you may not be granted access to Picasa Web Albums, your account or any files or other content contained in your account.

So, Google can terminate a Picasa account for any reason at any time without notice and prevent you from accessing your photos long enough to extract them from Picasa. Excuse me?! If you’re using Picasa as your only storage point for your photos, you’re utterly screwed if Google holds to the extreme authority they’re claiming – you could literally lose every photo you’ve ever taken if you put them all up on Picasa. (Of course, if you don’t make local backups, you probably deserve what you get, but that’s a different issue.)

Not only that, but Section 6 of the Picasa TOS says “…Google has no responsibility or liability for the deletion or failure to store or make available any Content and other communications maintained or transmitted by Picasa Web Albums.” So if a photo you put up happens to be accidentally or intentionally deleted, oops, you’re SOL. You’re also SOL if your copyrighted, trademarked, or patented

content is stolen or is irretrievably corrupted due to software errors, or if downloading Picasa Web Albums to your computer destroys your entire photo catalog, something that Google specifically says in TOS section 13, Disclaimer or Warranties. Thankfully, some of the terms of the TOS may not be lawfully excluded or included depending on what state or country you live in, but how many of us really understand what the web commerce laws and copyright/trademark laws are in our state? And given the state of flux that Web-targeted laws are in right now, can we really say that this is any real protection if a billion dollar patented design is stolen off a home PC because Picasa opened up a security hole in our personal firewall ten miles wide?

Most of this discussion has been about Picasa Web Albums, but it’s actually bigger than just that one service. I’ve been emphasizing the word “content” previously because the Google TOS’s terms apply to any content you use on Google, not just to Picasa Web Album photos and images. Google can potentially use your emails in GMail, your photos and patented drawings for a better mousetrap in Picasa, your Google Groups communications and archives, the copyrighted novel you’re writing in Google Docs, etc. for marketing purposes, and you could potentially be liable for Google’s own screw ups.

Not only that, but section 11.2 of the Google TOS says that Google can give away your content to Google-associated companies so that those companies can use your copyrighted content free-of-charge too:

You agree that this license 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.

I’m not a lawyer, so I don’t claim to know how the laws on “general” TOSs interact with the laws on “service specific” TOSs. I don’t know Internet law well enough to know if my worst-case scenarios above are utter smoke or are realistic. I’d like to believe that all these TOSs are just there to cover Google’s corporate ass from litigation-drunk lawyers and morally bankrupt thieves like SCO. I want to believe that “Don’t be evil” is enough to protect me, and my copyrighted, trademarked, or patented intellectual property from abuse by Google or by their commercial partners.

But with terms like these, I just can’t. I’m a user of Google Docs for writing harmless documents that I share with family and friends. I love Google News and Google Maps. But I don’t use Gmail because I want my email to be private, and I’m careful what I use Google Docs for – no short stories that I might someday make money from. And I will not ever use Picasa Web Albums. Nor, for that matter, will I ever use Photobucket. I’m unwilling to give up control over my photos, or my children’s photos, so they can be used by some unscrupulous marketing exec even if I never publish them. And when you realize that Google’s TOS (section 2.2.B) says that you accept the terms of the TOS if you use their services even if you clicked “no” and refused to accept the TOS, “don’t be evil” sounds remarkably hollow.

Sometimes caution is absolutely warranted.

(Thanks to my wife, Jennifer, for putting me onto the Picasa Web Albums and Photobucket TOSs. If anyone is looking for a photo album/cataloging program that is inexpensive and enables you to “tag” your photos for easy sorting and searching, we’re quite happy with Corel Photo Album thus far.)

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