I do believe your company and intentions are exceptionally honorable, but, I believe there are better solutions than those you currently offer.

Implied licenses can be claimed if the User believes there is public access to the content/material, but they are a weak defense because they can be trumped by express restrictions; i.e. it’s messy.

If anything, your T&C require more restrictions on FMYI’s use if you want to use a License structure. Because FMYI access is private, not public, and not searchable by Google et al, you do have more legal structures available to you than if the User Content was being indexed, etc..

What you haven’t addressed is how the structure you operate under may cripple User/Developers in the future from entering into “exclusive license agreements” for their IP that previously resided in some form on your site (say, I upload to a wiki that my team collaborates on in FMYI - you now have a perpetual License and ability to sublicense that code; and change T&C to whatever you want?). That's a tough disclosure to have to make from a Developers side.

For alternatives to License Agreement structures, you may consider SERU as one http://www.ala.org/ala/mgrps/divs/acrl/publications/crlnews/2008/dec/breakbottleneck.cfm -- there are others as well. But, SERU was created due to the inherent problems with Licensing Agreements and online content. Other options come from outside of digital, such as "rental law," which could be applied as well.

To my knowledge the T&C requirements of apps like FMYI or Jive SBS are likely to be quite different than those for say, Twitter. What looks restrictive and even overbearing for us as individuals might be standard practice in IT, and I know there are enough sysadmin Silicon Florist readers to know that. :)

I rather doubt that clients like Hyatt and HBO are using FMYI without having taken a look at these issues.

We have heard loud and clear throughout the years that our customers care deeply about the security of their data. Since data security is our top priority, we chose to go with a Terms of Service that is specific about the protections it offers to our users and FMYI, rather than having protections be implied and left up to interpretation by the courts.

To respond to Dale, Marc and Samantha:

@Dale / @Marc D.

What you quote is only the second half of the paragraph. FMYI doesn’t own any submitted content by the user, and the user has all the rights related to the submitted content. FMYI is just licensed to show only you the content. The full paragraph:

“FMYI does not claim ownership of any Submitted Content. You, and not FMYI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and Proprietary Rights or right to use all Submitted Content, and FMYI shall not be responsible for the deletion, correction, destruction, damage, loss or failure to store any Submitted Content. However, with respect to any Submitted Content, all Users grant FMYI a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Submitted Content (in whole or in part) solely for the purposes of providing the Services to you.”

@samantha c.

Whether the Terms say it or not, every time you post something to a site/solution hosted by someone else, you are giving them a license under the law to display it. This is because as soon as you type something or post it, you have created and own a copyright in it. Copyright is a form of IP and therefore you are giving someone else your IP. To use someone else’s IP we need their permission to do so. This permission comes in the form of a license. If there is not an express license grant in the language then there is an implied one under the law. When you rely on things like “implied” licenses who knows what the scope of it is? For instance, does that implied license include the right of the solution provider to modify the content? It is unclear in Basecamp’s case. Our language tells you exactly what we are going to do with your content (show it to you, and only you). Perhaps this is a question you should ask our friends in Chicago about…

We are passionate about what we do, doing the right thing, and the local Portland tech and sustainability scenes. If you have any questions, don’t hesitate to swing by our offices at the Leftbank Project – would be great to grab a coffee or beer sometime!

-Justin

“FMYI is legally required to have a license even to share it with your own team.”

That is plainly not correct. Yes, it is one legal vehicle, but, you have others at your disposal, however, you have opted for the most invasive structure for USERs who may face future breach of contract suits due to having entered into the non-exclusive License with FMYI (unless they disclose this, but it means NEVER entering into an exclusive license or sale of any IP that has been posted to FMYI, EVER).

If a License were an obligation, then BASECAMP would require it, they don’t.

TWITTER does require such T&C, since they publicly display Owner’s content. Private services do not require a License, a USER can “rent” the space/service from you without entering into a License Agreement through a variety of legal terms. While FMYI is a reputable operation, there are collaboration sites springing up who are appropriating IP, particularly from developers, during early-stage proprietary work.

Granting a license of any kind whatsoever to IP during development? It’s suicidal. Under the thinking you apply, you should be required to be under strict NDA and NCA terms by all of your Clients, the same as any employee or partner.

There is never only one legal opinion that is fact. If that were the case, there wouldn’t be Courts. I recommend you seek multiple opinions and then undertake efforts to promote how you are not invasive and how your focus is on protecting the IP of those who use your service. That will differentiate you in the market.

We are entrusting an online company with extremely sensitive information. We can only hope that the concern for it’s value is held by both sides.

That has got to be one of the worst descriptions I have ever read.

Why do companies do this? Just be real and direct!

I’m not a lawyer, but, there does appear to be conflicting language in your T&C:

The line:

perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Submitted Content (in whole or in part)

Is the part that would worry anyone. You can say it’s “qualified” and diluted by other language, but, you could also rely on that language (Why do you need to “publicly perform” something you say you are solely sharing privately? Why is it perpetual, if someone closes an account you still have a License? Why?).

Again, it’s very conflicting language and I think it’s better for people to bring these kind of issues to the forefront, since as @dale says, no one really reads these.

Thanks for your concern about the Terms and Conditions! The section you mention allows FMYI to utilize the content you post SOLELY to share with the people you choose to share it with. You may wonder why FMYI needs to do something like this, and why other similar sites do as well. It’s because it’s required by law. The data is intellectual property, and as FMYI is a vehicle to share it, FMYI is legally required to have a license even to share it with your own team. Regarding the ability to change terms and conditions, all companies need to do so because legal requirements change from time to time. To remain current and because new features are added, FMYI needs to be as dynamic as the products offered.

-Justin

@Dale: The terms look insane, I’m wondering how come they managed to have customers like HBO with these terms.

However, with respect to any Submitted Content, all Users grant FMYI a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Submitted Content (in whole or in part) solely for the purposes of providing the Services to you.

***

So, when the Content I upload requires me to make future representations that I’ve never licensed it and I can enter into an “exclusive” license with someone else (like a Venture Cap group), how does this apply? I’ve already entered into a License with FMYI.

And, since FMYI (like everyone) reserve right to change the T&C at any time, what if they decide that License now extends beyond “Services.”

OK, no one reads the T&C on these sites, but, compare it to Basecamp.