NET(net), Inc.


Terms of Use by jigordon
April 5, 2008, 11:10 pm
Filed under: contract terms, copyright, EULA

The SaaS/ASP ship has sailed and we’re now living in a world in which online services will continue to proliferate and will probably (by some estimates) overtake installed software in the next few years. Each one of these services has some sort of Terms of Use or Terms of Service and as you might imagine, the larger the company, the more potentially onerous the terms and the impact.

Last month, Adobe got caught in a little tiff (ha!) regarding their Terms of Use. John Nack is Adobe’s Senior Product Manager for Photoshop. He blogs on Photoshop-related topics and brought the Terms of Use to the forefront. You can see my comments (posting as “Jeff”).

As of yesterday, in response to public complaint, Adobe has modified their Terms. The relevant new language:

“Adobe does not claim ownership of Your Content. However, we do need certain rights from you, with respect to Your Content, in order to operate the Service and in order to enable you to do all the things this Service affords you the ability to do. Therefore, with respect to Your Content, you grant Adobe a worldwide (because the internet is global), royalty-free (meaning we do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) fully sublicensable (so that we can permit our affiliates, subcontractors and agents to deliver the Service on our behalf) license to use, reproduce and modify Your Content solely for the purposes of operating the Service and enabling your use of the Service. With respect to Your Shared Content, you additionally grant Adobe the rights to distribute, publicly perform and publicly display Your Shared Content (in whole or in part) for the sole purposes of operating the Service and enabling your use of the Service and to sublicense Your Shared Content to Other Users subject to the limitations of Section 7 below. These limited licenses do not grant Adobe the right to sell or otherwise license Your Content or Your Shared Content on a stand alone basis. Further, you may terminate Adobe’s right to distribute, publicly perform and publicly display Your Shared Content by making it no longer shared. You may terminate the remainder of Adobe’s rights by removing Your Content from the Service. (Detailed instructions on how to do these things can be found at http://www.adobe.com/cfusion/webforums/forum/messageview.cfm?forumid=74& catid=684&threadid=1351324&enterthread=y). Upon removal of Your Content from the Service or upon making Your Shared Content no longer shared, Adobe shall have a reasonable time to cease use, distribution and/or display of Your Content. However, you acknowledge and agree that Adobe shall have the right to keep archived copies of Your Content.”

Overall, I’m impressed not only by Adobe making the change, but also by the way they explain the licensing language (using the “term of art” with a parenthetical in plain English). Good job, Adobe! Now, if only others would be so responsive.

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5 Comments so far
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While I also liked the parenthetical descriptions of terms of art, I did not like the way they were embedded into the sentence. A 78-word sentence is a long way from plain english. Overall, the paragraph has 32.2 words / sentence and is at a 16.3 grade level. I spent 5 minutes re-writing it as follows, resulting in a reduction to 25 words / sentence and a 13.6 grade level. I do not think I lost any meaning.

Adobe does not claim ownership of Your Content. However, we do need certain rights from you to operate the Service and to enable you to do all the things this Service lets you do. Therefore, you grant to Adobe the licenses:

(a) to use, reproduce, and modify Your Content solely for the purposes of operating the Service and enabling your use of the Service; and

(b) to distribute, publicly perform and publicly display Your Shared Content solely for the purposes of operating the Service and enabling your use of the Service and sublicensing Your Shared Content to Other Users subject to the limitations of Section 7 below.

These licenses are worldwide (because the internet is global), royalty-free (meaning we do not owe you any money), nonexclusive (meaning you are free to license Your Content to others), and fully sublicensable (so that we can permit our affiliates, subcontractors and agents to deliver the Service on our behalf). These licenses do not grant Adobe the right to sell or license Your Content or Your Shared Content on a stand-alone basis. You may terminate Adobe’s right to distribute, publicly perform, and publicly display Your Shared Content by making it no longer shared. You may terminate the remainder of Adobe’s rights by removing Your Content from the Service. (Detailed instructions on how to do these things can be found at http://www.adobe.com/cfusion/webforums/forum/messageview.cfm?forumid=74& catid=684&threadid=1351324&enterthread=y). When you remove Your Content from the Service or when you make Your Shared Content no longer shared, Adobe has a reasonable time to cease use, distribution, and display of Your Content. However, Adobe may keep archived copies of Your Content.

Comment by chrislemens

Thanks for your comments, Chris.

I agree, it’s still written in a very complex use of the English language. I wonder, though, if the three-level decrease in grade level would actually affect comprehension.

However, if you’re up to it, I have a 35-page software license that I would love to convert to an easier-to-read form. 🙂

Comment by Jeff

Jeff, I’ve found that I can reliably get the reading level down to 10th grade level if I work at it. I think that’s important if you expect that you might need to litigate your contracts, because the jury has to be able to read it.

I’ve found that a 35-page contract can probably be brought down to 25 or so through plain English drafting. Sometimes it actually gets longer, though, if the existing form has lots of internal lists that are not broken out into numbered items. Bryan Garner (www.lawprose.org) outlines the following steps as a good start:
1. Eliminate pointless legalisms.
2. Convert be-verbs to strong verbs.
3. Convert passive voice verbs to active voice.
4. Convert nominalized verbs (-tion) into active verbs.
5. Eliminate “of” where possible.
6. Eliminate the word “shall.”
7. Convert internal lists to broken-out lists.
7.1(A)(iii). Ensure your numbering is consistent. 😉

Comment by chrislemens

I really like 7.1(A)(iii). 🙂

And yeah, I’ve used 1, 3, 7 and 7.1(A)(iii).

Maybe I don’t want my documents at a 10th grade level. Juries would hardly ever see these documents, I don’t believe as the contract language isn’t really a question of fact.

But I dunno’. I’m proud of the fact that I’ve been able to keep my contracts from needing litigation – so I don’t have any true test of whether my language is too complex.

Comment by Jeff

Jeff, what I’ve found is that a significant percentage of business people in any large group also read at 10th grade level. Don’t get me wrong — they have other strengths that got them where they are, but reading complex grammar isn’t one. I like for my business people to be able to read my contracts without my help. Likewise, I’ve found that using the plainest English reasonably possible helps avoid disputes arising from ambiguity that you didn’t know was there until someone claimed that the sentence meant something other than what you thought. The word “shall” is one of the most ambiguous terms in most contracts.

Comment by chrislemens




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