This excerpt from the MySpace Terms and Conditions has been floating about the place, grabbed in this instance from the Resonance FM blog where they say “once an artist posts up any content (including songs), it then belongs to My Space (AKA Rupert Murdoch) and they can do what they want with it throughout the world without payng the artist.”
By displaying or publishing (“posting”) any Content, messages, text, files, images, photos, video, sounds, profiles, works of authorship, or any other materials (collectively, “Content”) on or through the Services, you hereby grant to MySpace.com, a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services. This license will terminate at the time you remove such Content from the Services. Notwithstanding the foregoing, a back-up or residual copy of the Content posted by you may remain on the MySpace.com servers after you have removed the Content from the Services, and MySpace.com retains the rights to those copies.
I’ve got no desire to be an apologist for Murdoch and wish with all my heart that a better service than MySpace had won the music-social-network game, but I’d really like some clarification on this, specifically the bit I’ve emphasized above.
Doesn’t “on and through the Services” just allow MySpace to turn your uploaded mp3 into a Flash Audio file (modify, adapt, translate) and make it available (publicly perform, publicly display, store, reproduce, transmit, and distribute) throughout MySpace? Isn’t this just the standard disclaimer for such things? Yahoo, which includes Flickr, has the same thing in their T&Cs (about halfway down). Does that mean they “own” my photos, regardless of what copyright or license I’m attached to them?
Of course not. I own my photos, but by utilising Flickr’s service I grant them licence to edit and reproduce my images within the service on search pages, aggregated pages and so on. This is what makes Flickr work. It’s also what makes MySpace work. That any random MySpace user is able to embed a song in their profile without asking permission first is enabled by this piece of clunky legal speak which I’m sure you’d find on any service that allows people to upload their own copyrighted work.
That last bit, “a back-up or residual copy of the Content posted by you may remain on the MySpace.com servers after you have removed the Content from the Services, and MySpace.com retains the rights to those copies” looks more disturbing, but probably isn’t. I assume this means the nature of their backup system is such that when you delete a song it will be some time before it’s completely eradicated from their system, if at all, and so should MySpace continue to stream that song (say on a user’s page that’s running from a backup) after you’ve removed it then they’re still covered.
Again, I’d really like for MySpace to screw up in this way and for everyone to boycott them allowing something better to take it’s place, but I have serious doubts as to whether this is the thing.
These things, while they should be studied deeply, are generally written from the point of view of “how can we not get sued” rather than “how can be screw our customers.” Murdoch doesn’t want your songs – he wants to sell advertising on top of your songs.
But hey, I’m not a lawyer. Can someone get a lawyer to look at this before everyone goes off half-cocked?
It seems to me that few people have been taking all that much notice of this — yes, there’s the BoingBoing post, the original Open Business post, this one, and the Resonance one. I expect you’ve seen more; I haven’t looked. But not a huge buzz; not a wave sweeping the blogosphere demanding outrage and action.
It’s as if people are ok with hearing that MySpace is evil and that they don’t really care all that much. Now, if you look at the terms and conditions with more than a casual eye then they don’t actually look particularly evil anyway, but even without questioning it people don’t seem to be all that worked up about it all…
(IANAL) That’s exactly what it says, and should be entirely clear from the following sentence (ie: This licence will terminate…, etc)
But that doesn’t make a very interesting story, does it?
Pete,
I’m not a lawyer but in another life I did a ton of intellectual-property research, and your analysis seems spot-on.
If MySpace didn’t have this clause in their terms, they’d have no license to show anything you posted to anyone else and, since anything you create is your copyrighted work, they’d be committing copyright infringement if they did show it to anyone else. If it weren’t there, someone could write and record a song, upload it to MySpace, and then go to court; the proceeding would look something like this:
Judge: Mr. Murdoch, you distributed this person’s song to third parties. Did you have a license?
Rupert Murdoch: Well, Your Honor, he did upload it to our site…
Judge: I didn’t ask if he uploaded it. I asked if you had a license to distribute it.
Rupert Murdoch: Well, no, not explicitly…
Judge: I find for the plaintiff. Mr. Murdoch, you’re guilty of copyright infringement.
The “residual” bit is much the same; large content storage systems use a lot of redundancy (that’s the ‘R’ in ‘RAID’ — Redundant Array of Inexpensive Disks — which is one of many ways of handling huge amounts of data), and there’s no guarantee that when a file is deleted in one part of the system it will immediately disappear from all other parts. So the license covers that, too, just in case.