As far as I'm concerned, I now have a perpetual, transferable license to make and sell Mickey Mouse puppets. I even asked a lawyer.
A phrase in children's book is unlikely to be considered sufficient evidence that Disney has conveyed an unlimited license to sell Mickey puppets.
At best, the language might protect an unsophisticated infringer from having to pay statutory damages or Disney's legal fees. For example, if a naive person (non-lawyer, non-business person) sold a few of the infringing puppets on Etsy, Disney would drop it (or a court would force Disney to drop the case, if needed) as long as the infringer promises to stop infringing.
In contrast, a sophisticated infringer would be hung out to dry. Because sophisticated infringers cannot credibly suggest that they believe Disney has conveyed an unlimited right to make and sell Mickey puppets based on a phrase included in a children's book.
Note, the words of a license or contract (including signatures if present) are taken as providing some amount of evidence of a license or contract. Contract docs memorialize an agreement between parties to enter into a contract. Formality requirements depend on the stakes, tradition, sophistication of the parties, etc. Most of this can vary widely depending on the industry or type of contract. Plus, in many cases, other statutes or regulations may come into play depending on the subject matter, type of agreement, duration of agreement, jurisdiction, and so on.
Here, since conventional language or formalities that Disney normally uses when licensing its IP is absent, a court is likely to find no license grant or contract.
Fair use is a balance of a number of conditions (in the US). One of them is how commercial the use is, and spin off merchandise is pretty commercial.
In contract law, signatures on a document memorializing a contract provide (often fairly strong) evidence that the signing parties have agreed to the contract.
Copyright protects the What (tangible creative works, such as, printed publications, movies, sound recordings, source code, and so on)
Trademark protects the Who (who made this service or product)
Patent protects the How (how does this widget do what is does)
IF cost_of_settlement < cost_of_court_action THEN pay_up(); /* ? */
Patents on software are not that simple - it needs to describe an entire physical system that gives value to a user, not just an abstract function that does computation.
You should not include code at any point if you do not have the proper license for it. The copyright pollution spreads and any attempt to "clean room it" would be more expensive than re-writing from scratch.
(It's similar to the early days of heat engines, where a guy called James Pickard managed to patent the crank, preventing other engine manufacturers from using cranks and forcing them to use a sun-and-planet gear arrangement instead: https://en.wikipedia.org/wiki/Sun_and_planet_gear )
Nothing stopped you from implementing them yourself.
I'm not being facetious, it's called ICAN, and as far as I can tell no compiler exists for it. Other than that it's a great book though, although maybe showing its age in that there isn't much discussion of OOO and ILP etc. And SSA.
> The implementation of LISP began in Fall 1958. The original idea was to produce a compiler, but this was considered a major undertaking, and we needed some experimenting in order to get good conventions for subroutine linking, stack handling and erasure. Therefore, we started by hand-compiling various functions into assembly language and writing subroutines to provide a LISP ”environment”.
Not too long ago, a colleague asked me if I had a good code for linear regression, and I sent him a copy of the page from my undergraduate data analysis textbook, which had it in FORTRAN IV.
That's not even remotely true. The plain language of the book says to have fun making them. It's irrelevant it you have fun selling them because that's an entirely separate act.
Arguing that you have a perpetual and transferable license wouldn't just get you laughed out of court; you'd likely owe Disney their legal fees for making a bad faith legal argument.
The book terms form a license. Backed by the purchase price of the book. Disney's likely argument is that only original purchasers of the book are covered by the license, that non-transferability was implied.
The distinction between a contract and a license is a lot smaller than most people in software seem to think it is .
A contract can involve a license, and a license can involve a contract, explicitly. But they are different things. You need a lawyer to explain precisely how they are different, and how they interact. (Many judges and many lawyers are not very clear on license law.)
But one important difference is that there is no need for mutual agreement or exchange of value, in license law. If you don't agree, you don't have the license. You start out bound by its restrictions, under the Law of the Land, and they are only relaxed by its owner choosing to relax them.
Contract law applies to all licenses, but IP licensing law does not apply to all contracts.
("Contracts" and "deeds" are different – contracts require consideration, deeds don't – a deed can be completely one-sided; deeds have far stricter formality requirements than contracts.)
There may also be cases of licenses which are neither contracts nor deeds – such as the concept of a "license by estoppel".
The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
A contract that has not been affirmed by exchange of consideration and at least implied consent is void. Licenses, as I have been told, may be entirely one-sided, and need not depend on explicit actions by either party. They are different, neither a superset nor a subset of contracts. There is, however, a bunch of cracked case law around licenses created by jurists confused about the topic.
I am no lawyer.
Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.
> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.
That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.
The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:
1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,
2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,
3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and
4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.
Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.
What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.
I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.
And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.
This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).
Neither of those state that it is not a contract.
> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".
> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent
A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.
The Russian Mafia think my chances better beating them than Disney.
Perhaps you meant something else.
> The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus
. These replies may appear in something special on May the 4th!
... as if that's really any better.
What Disney is arguing is that their Twitter account is magically a "Disney Service", and that by tweeting at them, and using a specific hashtag, you are magically using their service, which would then bind you to their terms of service.
Fuck right off. That's not how this works.
I understand what Disney wants, it wants to use other people's tweets in their own promotion materials. That is fine, provided they ask permission from the authors of said tweets. But since they're lazy fucks, they're trying to pre-emptively argue that if you use that hashtag, they already asked, and you already said ok, so they don't have to go through the hard, hard, work of actually asking people and documenting their consent.
I'm not saying you all should reply to that tweet with your best Chewbacca furry porn. But you totally should.
The only way to challenge this is for you to tweet something to Disney that they then use in their marketing material. That allows you to send them a cease and desist, because you didn't give them permission to use your tweet in that way. At that point Disney is just going to say "ok", shitlist you, and stop using your tweet, because that's cheaper than any alternative.
This is just overreaching bullshit CYA legalese that's never going to get challenged in court.
This is what unfettered and auto-extending copyright enables.
How do you figure?
"You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content)."
(Twitter certainly isn't unique here, this is the gold standard for user-submitted content. Users always own their content, but grant the service an unlimited royalty-free transferable license to copy, process, display and "perform" the content.)
>Will Google use my social media posts to promote Code Jam?
>If you share or post content on any Coding Competitions social media page(s) or tag a post with a Contest hashtag (e.g. #CodeJam) on your social media account, then Google may feature your Social Media Content in marketing and promotional materials for any Coding Competitions Contest. Learn more in the Coding Competitions Terms.
Guess it is more binding when they write that on their webpage than on their social media
"Walt Disney World was awesome! Thanks to all the hard workers who made the day special.
By replying to this Tweet, Disney Corp. hereby agrees to abide by the copyright laws in place as of the release dates of its motion pictures, instead of the longer dates obtained through perversion of the legal system by Disney and its lobbyists."
In all seriousness, I'm sure Disney never thinks for a moment that the law would ever be applied fairly to them or that this tweet could come back to bite them.
When he sued the bank to enforce his contract for a no-fee account with an unlimited line of credit at 0% interest he won. Fortunately for the bank he was prudent in his spending despite his access to unlimited funds so he hadn’t racked up much of a bill.
Story here: https://www.independent.co.uk/news/world/europe/read-the-sma...
I don't think Disney is setting any precedent or anything else weird by saying "send us messages you want us to publish, by the way here are the specific terms we want to use" on Twitter, they've been doing that for a long time before twitter even existed. Think about America's Funniest Home Videos, they did exactly this for decades but over TV.
Your tweet fails to give Disney any "consideration" so it's not going to be a valid contract and not because it's in a tweet. Offer them clearer terms and a dollar and then maybe you'd have a point. Right now they offer you a chance to see your tweet in some marketing materials, better than nothing right?
Lastly, this is incredibly specifically scoped. Does anyone tweeting "Love the new movie #MayTheFourth @Disney" really expect Disney not to want to use it? They are going to have someone review the tweets before they use them. How could this possibly come back to bite Disney?
Twitter's ToS gives Twitter a license. But not third parties on Twitter.
Disney could buy a license from Twitter who would be able to use the rights they're granted by their ToS, but they would need another contractual agreement to do so.
They made the requirements pretty clear and stringent enough that I very much doubt anyone is at risk of accidentally entering into that contract, but if that does happen, then the contract would be null. I just don't see that happening though.
The problem is Disney co-opting two regular parts of Twitter's service, and then claiming that represents a Disney service. It isn't, and can clearly be used for purposes beyond establishing a contract.
You can set up a phone line or P.O box with the same terms of service agreement. Twitter is not sacred. You can call that "co-opting" those services I suppose, but I don't see why that's a bad thing. Services exist to be used.
Disney is going to use some common sense when reviewing these tweets and filter out the trolls and people disputing the terms. They are not out here trying to trap helpless children into a contract, just make some marketing materials. Again, this is not the first time this has been done and is not controversial. Maybe I underestimated the number of troll tweets, but I'm sure Disney will figure it out just fine.
Yes they are. Did you not read their tweet? They literally called it a contract and said that they believe anybody who replies to them with that hashtag is agreeing to its terms. Their choice not to exercise the rights they are granted by that contract doesn't mean that there isn't a contract.
The only thing that does mean there isn't a contract is that their logic is bullshit and they can't unilaterally decide that somebody else has entered into a contract with them.
“@Disney #MayThe4th This tweet enters into Disney’s offered contract, except that Disney agrees to pay $100,000 for the license to optionally publish this Tweet and to include it in Tweet analysis corpuses. If Disney doesn’t explicitly object within 48 hours or collects this tweet as part of a database, they accept this modification.”
IANAL, genuinely curious.
In this case Disney offered a contract that you enter into via tweeting a reply. If you send back modified terms then Disney has the chance to review the new contract and reject or accept it. If a human saw your tweet and still included it in whatever marketing materials they are creating then you might have a good case.
Just as Disney would need to argue that you knew you were being bound by their ToS when you tweeted them, you need to show they accepted your terms. The part of your example about a time limit wouldn't fly for that reason. Both sides also have to think the contract is reasonable (not a joke). If you put a bajillion dollars as the price, there's no contract. I'm not sure if $100k for a tweet is believable.
"Walt Disney World was awesome! Thanks to all the hard workers who made that day special.
By replying or retweeting this Tweet, Walt Disney Corp. hereby agrees in perpetuity to sell to the owner of this twitter account for $1, per motion picture, an unlimited, license for any purpose."
> Walt Disney World was awesome! Thanks to all the hard workers who made that day special.
> By retweeting or mentioning this tweet, Disney agrees to grant every natural person that likes this tweet unlimited redistribution rights and has to pay each liking twitter account 1000 EUR per month per unique click.
Although scientifically speaking, the rounding off error of your original formulation is bigger :)
Copyright was not always as it is today.
Transforming this "copy-right" from a right given by the monarch to a right given by the authors was a key event on the way of Liberalism replacing Monarchism and changing all common law to be based on human rights. One should notice that this "exclusive right to copy" restricts the right to use such "intellectual property", which is why Article 17 of the EU Copyright Directive must be opposed unless, at least, fair use is granted.
Early modern copyright was even more restrictive: its intent was to restructure what became an uncontrollable market: having authors license their works exclusively to some large publishers starved the small presses and ensured a controllable elite that would not dare to print seditious materials. Owning an unregistered printing press was illegal under the threat of violence. It is naive to belief the primary intent was to prevent harm to the income of the authors. Until today the right to copy is mostly a right of the publishers. Authors sign it away and consumers do not get it.
It's totally legitimate to favor shorter copyright, but essentially any duration is an arbitrary one. It strikes me as odd that you would be interested in applying the law fairly while also referring to the law as a perversion.
The public did not benefit in any way from its extension. Quite the opposite: every time the duration of copyright terms is extended, the public is robbed of its rights so that corporations which have already made billions off of their copyrighted works can make even more money. When was the last time some copyrighted work entered the public domain? Probably the early 20th century. When people think public domain, what comes to mind is renaissance art and classical music. The truth is everything created in the 80s and before should already be in the public domain and that's very generous, more than enough time for companies to get rich off of their creations.
The original social contract behind copyright was "we'll pretend your intellectual work is scarce for some time so you can profit and then it will enter the public domain". Works aren't entering the public domain because every time Mickey Mouse is about to become public property Disney spends millions lobbying the government in order to extend the copyright duration. Copyright is effectively infinite despite what the law says. So why should the public recognize copyright as legitimate to begin with?
>When was the last time some copyrighted work entered the public domain?
January 1st, 2020:
I don't know.. I mean yeah, but something strikes me as really wrong about that.
tl;dr: 7-2 as long as there is some type of time limitation, Congress is free to extend copyright terms.
This is a good point worth bringing up, since the GP seems to imply it isn't with reference to the wording of the constitution's Copyright Clause.
However, it doesn't answer the moral question of whether congress should have passed that law, or whether congress should pass laws to change copyright term lengths to be shorter. That's not the role of the court.
Presumably SCOTUS would say that an effectively-infinite timeline is not "limited" within the Constitutional definition of the word. Eldred v. Ashcroft basically tried to argue that continual decades-long extensions amounted to this, but the Court was not convinced.
> Couldn't replying to their tweet be considered sending it to Disney?
Disney apparently does "consider" that to be sending it to Disney. Since Twitter doesn't belong to Disney, I don't see how that could have any legal relevance. Twitter has its own terms of service.
(I am not a lawyer.)
Also I think there's a time delay on seeing the reply link on replies to your own comments.
That’s not what Disney is doing. What Disney is doing would be like if I said “Anyone who Tweets at me owes me $5.” That’s obviously not a binding contract.
Couldn't replying to their tweet be considered sending it to Disney?
Is replying to a column in an opinion piece sending it to the author or the newspaper?
Sending a tweet to Disney with a generic hashtag can't be considered consent in any way, shape or form. What guarantee does DisneyPlus have that everyone sending them a tweet with hashtag #MayThe4th is intending that to count as consent?
Shouldn't they be negotiating with Twitter for that though?
The new clarification is absolutely better to not claim ownership over the entire hashtag, but it is questionable to claim in one tweet that any replies made to a different tweet are an agreement to a private TOS.
Of course the way they said that could have been worked on.
But the over-lawyer-ification and impracticality of opting out of corporate terms of service is an widespread problem. This is an interesting expansion of that problem, so it deserves highlighting.
However, if Disney plans to copy and paste the tweets into another graphic, they felt they wouldn't have the appropriate license to reuse text copywritten by others, without this odd TOS.
The one thing about this that plays into Disney's favor, is the attention probably reduces someones honest ability to say "I never saw the agreement tweet."
Other than that it just seems like a way to ask people to allow them to use replies in a video or something.
Edit: But wait, this is actually STILL ambiguous! On twitter, a 'mention' happens automatically when you reply to a tweet, because it includes the name of the account replied to, so it's not clear whether you actually have to tag @disneyplus or not.
I think you underestimate how well anyone in management actually understands this. One job had me constantly pushing back on three or more paragraphs of legal text in the damndest of places. In one case, the legal text was larger than the form itself to say "we need your email to contact you with changes related to your account".
Every time I contacted our company lawyer directly for clarification, he was always fine with the short summaries I wrote.
I was the only person in the entire process that stopped to ask if any of this was really necessary. I guess that's why I was the developer handling all most of our legal compliance. Everyone else either didn't care or had given up.
"As the writer, I get as much monetary value as I can or at least make you believe as such and you give up as much monetary value as possible, or at least as much as I can scare or deter you from seeking. I also have no responsibilities and all rights, while you have all responsibilities and no rights."
It's simply expanded out a bit more and often gives explicit examples. It's completely unmanageable for any common citizen to process and understand what you almost have to agree to on daily basis to function in our ever more privatized world.
The amount of garbage I see on a daily basis wrapped with passive aggressive legal threats around every corner is mind numbing. I even still get emails from people who add footers that they own the information and if you receive it wrongfully, you're "required" to delete it.
We essentially have a bunch of children running around running society through businesses driven by greed who never fully socially developed into functioning reasonable and responsible adults.
The company can now sue the recipient or at least threaten him for disclosing stuff. Yes: the error is on the sender side, but in ye olde times the unspoken agreement was that you'd delete mails not addressed to you. Times have changed and so the legal boilerplate had to adapt.
A bit more common sense across the world, especially when it comes to the trend of resolving conflicts via courts instead of talking to one another and shaking hands, and there would be a lot less boilerplate and mind-bogglingly dumb disclaimers ("don't put any animals in microwaves") in this world.
If the language doesn't actually prevent liability anyway, then get rid of it.
I occasionally get cold emails from recruiters that come with length NDAs at the bottom (often longer than the actual content of the email). I find it utterly silly, but at least it's a strong signal that I won't be missing anything good by ignoring it.
In ye olden days if you accidentally received someone else's mail it was a felony to open it. If anything the legal restrictions have been drastically reduced when it comes to email.
GP said that the letter is addressed to you, but the content is intended for someone else. You can’t obstruct delivery because it’s been delivered to the right place (the address on the envelope).
If obstruction of delivery applied in this case then we would end up with the ludicrous scenario where I could deliberately address letters to you, that are intended for my boss, then demand that you somehow deliver or return the letters once you’ve opened them.
Imagine if I sent you thousands of these letters, it would be a postal and legal DDOS.
I imagine if you tried to abuse this and then sue your case would be laughed out of court. It would also be awfully expensive; compare the cost of postage to send all those letters with the cost of a rubber stamp to have them returned.
if they had instead just said like "We're compiling something special for May 4th! Tweet @Disney using the hashtag #MayThe4th with your favorite Star Wars memory and you may see your memories featured (subject to TOS)" I think generally it's more honest. but yeah i guess no one cares to be 'that person'.
Ironically they militantly protect their brand, and have conflicting mandates and reasons for doing so (it's not just to keep the image, it's to keep others from deriving value from their brand). Sometimes those mandates interfere with each other, like we see here.
I'd speculate that the people running social media didn't want to send out these tweets and the people in legal told them they had to, so they do it a week ahead of time on a less visible twitter account and hope it blows over a bit.
This is Disney we're talking about. Their legal concerns generally trump everything. It would be ridiculous if not for the fact they're worth billions of dollars and could actually take people to court over small stuff like this.
I’m sure that the company who owns somewhere around 35 cable TV channels and half a dozen film studios has the stereotypical intern running social media.
Is this idea--that major brands let interns run their social media--ever going to die? It's like a decade out of date, at least.
It's a lock that social media at Disney is led by at least one senior official and probably maps down to multiple teams--marketing, comms, customer service, research, etc.--and probably at least one outside agency. I guarantee that Disney has people with experience in social media.
From Disney's perspective, this is a positive thing for their fans because it makes it easier for the fans who want to engage with them to do so--as opposed to the usual thing for user-submitted content, which would be a "microsite" web form with similar terms and conditions.
And there is very little downside. A few grumps will performatively mock Disney on Twitter for a week or so, which happens basically whenever Disney does anything. Knowing which complaints can be ignored is a good example of the benefit of actual experience with brand social media. For example, Apple had the same terms for their Shot On iPhone campaign, which no one seems to even remember:
>1. How to Enter. To enter the Shot On iPhone Challenge (“Contest”), upload the best photograph that you’ve taken on your iPhone within the six months preceding the start of the Contest Period (defined below) (the “Photo”) and Tweet, post, email or upload it, as applicable, with the hashtag #ShotoniPhone for Twitter or Instagram and #ShotoniPhone# or the Chinese localized hashtag #⽤用iPhone拍摄# for Weibo, along with information indicating which iPhone model was used in the image caption, via one of the following methods:
>(i)Via Twitter: Log onto your Twitter account and follow the links and instructions to become a follower of Sponsor’s page on Twitter, located at @Apple, and Tweet the photo with the required hashtags and other information. You must be an active holder of a non-private Twitter account and be a follower of @Apple to be eligible to enter this Contest via Twitter (i.e., you must make sure your tweets are set to “public” and not “private”). You must have a Twitter account to enter via this method. If you do not have a Twitter account, you can create one by visiting www.twitter.com. Twitter accounts are free.
> Providing a Submission constitutes entrant’s consent to give Sponsor a royalty-free, irrevocable, non-exclusive license to use, reproduce, publish and display such Submissions in whole or in part, on a worldwide basis, in any form, media or technology now known or later developed for one year for purposes of implementing the Contest.
Meanwhile the folks who like Disney will feed them content and data for their campaign, which is what they wanted.
Now it lives on through a website.
> By tagging photos using #SkyMilesLife and/or #DeltaMedallionLife, user grants Delta Air Lines (and those they authorize) a royalty-free, world-wide, perpetual, non-exclusive license to publicly display, distribute, reproduce and create derivative works of the submissions (“Submissions”), in whole or in part, in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion on Delta websites, commercial products and any other Delta channels, including but not limited to #SkyMilesLife or #DeltaMedallionLife publications. Delta reserves the right to use or not use content tagged #Skymileslife and/or #DeltaMedallionLife and user will not be entitled to compensation if photo is used.
The fact that no one seems to remember this about "Shot on iPhone" is a good clue that few people actually care about this sort of thing.
Which makes sense because from a practical perspective--whether or not these terms are actually enforceable--it's super easy to avoid them. Just don't use that hashtag.
Obviously Disney won't use any tweet sent previous to yesterday, but any one of those persons could have used the hashtag again today without having the faintest clue of what Disney claimed.
I'd argue this is also not limited to Twitter posts?
> User warrants and represents: (a) he/she is the sole and exclusive owner of the Submission, including all rights therein [...]
Because no one ever posted something they didn't own.
I don't know the legality of any issues that this can bring, but this seems comical.
What would be the alternative though?
They're too busy, on the clock
Many users of hackernews have expressed their disagreement and disapproval of our TOS. After careful investigation, we realize that our original policy was ill conceived and worded in such a manner that people were aware of the vigorous bodily actions which we were performing on them. Due to this we offer our heartfelt apologies, and a guarantee that we will rewrite this policy in a manner that is so obfuscated that no person can realize they are being thoroughly hosed until our lawyers descend. As part of our apology we are offering a coupon that entitles all parties who were effected to 10% off a year subscription to our service provided they will sign a Form 24-62C releasing hpoe and affiliated parties from all damages done to them or their relatives past, present or future, in perpetuity.
Thank you our customers mean so much to us.
When you click on a link, our server will send you the corresponding page.
If that agreement was present when I first joined, I might not have joined at all. It's blatantly out of step with HN's community in general, and it makes me lose a bit of respect for YCombinator.
Well at least we can overwhelm them with cases.
“On display? I eventually had to go down to the cellar to find them.”
“That’s the display department.”
“With a flashlight.”
“Ah, well, the lights had probably gone.”
“So had the stairs.”
“But look, you found the notice, didn’t you?”
“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”
Circa 2000 a French guy wrote a web page with some legal text and an e-mail address. The legal text said that writing to the e-mail address implied acceptation of a processing fee (about 10$ IIRC).
It went as intended: spam robots harvested the address, sent spam. The guy picked a spam e-mail that could be traced to a sender he could sue. He did and the judge ruled in his favour.
Can't find a reference now, but I remember seeing a scan of the court ruling.
Particularly interested in of they're extradite now, with Covid19 and all.
> You agree to not use the Site to: email or otherwise upload [...] software viruses
It's kind of funny when it's a big corporation doing it.
> The Disney Products may ask for or allow you to communicate, submit, upload or otherwise make available text, chats, images, audio, video, contest entries or other content (“User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. Whether a Disney Product made available by us or in connection with Disney Products appears on a Disney website, service and/or platform or is integrated with a third-party website, service, application, and/or platform, you may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
... and they continue like that for a few paragraphs. Doesn’t look like they’ve updated the terms to account for this use.
Either way, reminds me of when sites tried to block “links” or require their website terms to apply to simply linking to a site...
the problem isn't just that this sounds like it was written by a legal alien, it's that they're claiming rights they don't need. The disney ToS outline all kinds of things that you aren't allowed to do, and it's obviously ridiculous to suggest that you can't include their hashtag in a tweet that violates their ToS.
Twitter users already grant Twitter the same rights Disney was asking for. Those rights include letting Twitter share, modify, or re-license the user generated content with few limitations.
Here Disney is trying to clear the rights to include user generated or user provided content in promotional material.
This is similar to how they get the rights to use other contest-like user submissions submitted by email, official Disney forums, apps, or web forms.
However, here they completely misjudged how this looks on Twitter and how the twitter laity would respond.
> This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, Retweet, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
Thus, if they intend to launch a multi-million dollar commercial project using content posted to Twitter, they need to do some work to clear the rights.
The Twitter TOS allows Twitter to do stuff with user posted content. It doesn't allow Disney have unlimited rights to do stuff with content posted at @DisneyPlus by other Twitter users.
Absent licensing the content directly from Twitter, they could have asked for the rights for the few tweets they end up deciding to use. Thinking outloud -- I guess that wouldn't work if they wanted live stream tweets...
edit: fixed - somehow my third para said the opposite of what I meant
"We do not claim ownership of your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, create derivative works based upon, publicly perform, publicly communicate, make available, and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Disney Products and on third-party websites, services, applications, and/or platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity."
So, @disneyPlus is a platform for The Disney Products. So if someone tweets some fanart with that handle, Disney is free to monetize on it?
"The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning
@DisneyPlus . These replies may appear in something special on May the 4th!"
Disney: "As per our first tweet, when the user replied to use with #MayThe4th, they were giving consent to use their tweet in our ad campaign."
Judge: "Were you aware of the first tweet?"
Plaintiff: "No, your honor. I posted my tweet in reply to the Disney+ account because I saw my friends doing it. The thread was ten thousand messages long; I didn't read the whole thing."
Not exactly a slam-dunk case for the plaintiff here, but I'd have to see precedent to show how a TOS that cannot practically be read is enforceable.
There is zero chance Disney will try to argue about this content. If someone complains at all, Disney will just take their tweet down and replace it with another one. There are plenty more fans out there who would be psyched to see their tweet being promoted.
What would be the consideration?
I think it would've been better to say "If you use this hashtag we may retweet you or feature your comment in promotional material" rather than asserting that you would agree to something by using a hashtag.
> B. License from Twitter. Subject to the terms and conditions in this Agreement and the Developer Policy (as a condition to the grant below), Twitter hereby grants you and you accept a non-exclusive, royalty free, non-transferable, non-sublicensable, revocable license solely to:
> 1. Use the Twitter API to integrate Twitter Content into your Services or conduct analysis of such Twitter Content;
> 2. Copy a reasonable amount of and display the Twitter Content on and through your Services to End Users, as permitted by this Agreement;
Point 2, you licensed the content to twitter and they license it via the developer portal.
Now this individual was remarkably stupid just as a general person, regardless of this event. I don't have any interest in debating the merits of what happened to him one way or the other.
However, it was interesting that the Disney lawyer explicitly informed his lawyer that their strategy would be to just bleed him dry into bankruptcy by getting continuances and stuff forever into the future, which would force him to keep paying his lawyer to show up and do stuff, but would never move the case forward.
Now maybe they just implied that or something, but I very much doubt the story happened exactly as described.
Often employee-side lawyers take cases based on contingency fees or shared/blended deals that mix hard money with contingency fees. If the case turns out to be a turd, some lawyers do just about anything to get out of it.
On the other hand, Disney's lawyers would have unlimited budgets and would be incentivized in stringing out the case as long as possible to get that sweet Disney money. They would have no interest in encouraging an early settlement unless they thought they would lose.
- everyone has to silently acquiesce to this,
- Disney has to actually file a court case against everyone who violates their "terms" and win them all.
I think they're trying for the first option. Suing thousands of people for stupidly unreasonable reasons is not a good look, especially for a company where image is everything.
Disney is saying they have the right to use any tweet containing the hashtag, including your name (and probably profile picture). If they use your tweet and you don't like it, you can sue them for copyright violation or using your name in advertising. However, there is no way in hell you can win that suit, because it is Disney and it will take years or decades and millions of dollars to fight it in the courts.
So if they use your tweet in advertising without your consent, your options are (1) to give up and move on, or (2) to spend the rest of your time on earth and all the money you have and will earn to fight them in courts.
They gain nothing from a fight, and there are plenty more Star Wars fans out there who would be happy to have their tweets promoted by Disney.
Same outcome, just Disney is not involved.
There's clearly no legal standing for a 3rd party organization to make blanket agreements for platforms they don't own.
The problem here is the requirement of Consideration in contracts. Twitter can bind me to their TOU because they give me the ability to use their platform. Disney can't, because they can't stop me from using #MayThe4th on Twitter - there's no consideration from them to me, so there's no contract.
If you could trademark dates, however...