March 9, 2013

Licenses Over Data: A Case Study

When you upload data to an online service, there is almost always a clause that deals with intellectual property rights over the data that you’re uploading.

Services often use wording about users “retaining ownership of content”, but it’s important to note that retaining ownership is cold comfort if you give a service the right to do almost anything it wants to do with the data.

WHEN IT MATTERS

The issue of intellectual property rights in data that you upload is important in a number of contexts.

  • If you run an online service, you need to consider what rights are appropriate to take over data uploaded to your service.
  • If you use an online service in conjunction with valuable intellectual property, you should check the terms, lest you sign away broad licences over valuable data.
  • It’s also the principle of the thing. It’s quite a shock to know how wide a licence many services take over the content that you store with them – especially when it’s personal data (Read: Facebook, or rather, their Terms).

CASE STUDY: GITHUB V BITBUCKET

Github and BitBucket are a good case study on this point.

Software developers use these services to collaborate on code, which in many cases, has incredibly valuable intellectual property rights associated with it.

A quick read of the terms shows that Github is the preferable service on this issue. Github’s terms read as follows:

We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours. However, by setting your pages to be viewed publicly, you agree to allow others to view your Content. By setting your repositories to be viewed publicly, you agree to allow others to view and fork your repositories.

BitBucket’s terms read as follows:

Unless otherwise specified, End User retains ownership of any data or other content or information that End User provides [...] End User hereby grants Atlassian a non-exclusive license to copy, distribute, perform, display, store, modify, and otherwise use End User Data in connection with operating the Hosted Services.

There is a marked difference between these approaches.  Github asserts “no intellectual property rights” and Bitbucket obtains onerous rights to “display” and “distribute” code “in connection” with the service. “In connection with” is broad drafting – courts have ruled that “in connection with” covers indirect connection as well as direct connection.

A PRACTICAL WAY TO DEAL WITH THIS ISSUE

It’s virtually impossible to keep track of all the Terms that you agree to, but there are services to help you keep track of the services that you store vauable data with.

For summaries of terms used by noteable services, check out the Terms of Service: Didn’t Read project. For keeping track of changes to terms, take a look a Docracy’s Terms of Service Tracker.

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