This is a republishing of a series of blog posts looking at the pal-item.com Terms of Service, discussing what they actually mean and how they might impact your use of the Palladium-Item website.  (The Palladium-Item is Richmond, Indiana's daily newspaper.)  You can view the original posts where they appeared on the Pal-Item site: Part 1, Part 2, Part 3.

The pal-item.com Terms of Service (TOS) are the policies and terms that the Palladium-Item and its parent corporation, Gannett, have set forth for the use of their website at pal-item.com.  When you visit the site in your web browser, you are subject to those terms.  Opinions vary about whether the TOS can be considered a legal contract between you and the Palladium-Item, and how enforceable the terms might be.  But one thing is clear: as websites like pal-item.com become more interactive and encourage more user submission of content, it’s in your best interest to understand these terms and how they affect you.

The Nature of the Agreement, and Making Changes

Here’s the excerpt we’re looking at for this installment:

“Accessing the Site, in any manner, whether automated or otherwise, constitutes use of the Site and your agreement to be bound by these Terms of Service.

We reserve the right to change these Terms of Service or to impose new conditions on use of the Site, from time to time, in which case we will post the revised Terms of Service on this website. By continuing to use the Site after we post any such changes, you accept the Terms of Service, as modified.”

Let’s look at that first sentence in more depth: accessing the site in any manner constitutes an agreement to be bound by the terms of service.  This essentially means that by opening up a browser window and typing in pal-item.com, you are consenting to be bound (legally bound?  Who knows!) by the terms of service.  These terms could be construed to mean that even if you just click on a link from another website and you’re not even sure that you’re coming to the Pal-Item.com site, you’re still bound by the terms.

This is a fairly standard clause in “Terms of Service” documents, but continues to be an entirely unenforceable one from the perspective of the average user.  In any case where a dispute actually arises related to the terms, the paper would probably have to show your intent to “visit” and “use” the site more than in just a casual fashion.  Still, it's good to be aware that from their perspective, you’re bound to their terms the second you step onto the site.

Now let’s look at the part about updating the terms: “We reserve the right to change these Terms of Service or to impose new conditions on use of the Site, from time to time, in which case we will post the revised Terms of Service on this website. By continuing to use the Site after we post any such changes, you accept the Terms of Service, as modified.

This essentially says that the moment someone on the Palladium-Item staff makes a change to the Terms of Service page, as soon as you visit the site after that change, you’re bound by the new conditions, even if you haven’t read them yet.

This is also a common provision of many terms of service documents, and is also pretty much unenforceable.  In July of 2007, the Ninth Circuit U.S. Court of Appeals ruled that website operators cannot hold visitors to the site solely responsible for visiting the updated TOS document in order to be bound by their terms.  See Douglas v. U.S. District Court for the Central District of California, 2007 WL 2069542, 9th Cir. (Cal.) Others have suggested that site operators at least give something like 30 days notice after a change before it takes effect, and that they actually describe the changes that are made instead of assuming you can compare two versions of the document.  We know that the Pal-Item has our e-mail address on file if we have an account here - they could send out an automated e-mail notifying us of the change, as many kinds of financial institutions are now required to do in similar cases.

This also raises questions about what kinds of changes the Palladium-Item might make to the terms.  While it’s unlikely that they would introduce a new clause that says “every time you visit the site, you shall incur a debt to the Gannett Corporation in the form of $10,000 or the delivery of your firstborn child,”  it’s still of concern that a document intended to be a contract can be updated without one of the parties to the contract participating in that process.  The concern is amplified when you're submitting personal or original content to the site - how will that information be used now?  And even if you're okay with how it is used now, how will it be used in the future when the terms are modified?

I certainly find that to be food for thought.

Intellectual Property, and What They Do With What You Post

In this installment, I’d like to look at the intellectual property rights aspect of the TOS.  Here’s the first relevant part:

…unless explicitly authorized in these Terms of Service or by the owner of the materials, you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Site. You may, however, from time to time, download and/or print one copy of individual pages of the Site for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.

Let’s break that down a bit.  The first sentence says that basically, you are not allowed to use any of the information on the Pal-Item.com in any way that involves copying it or redistributing it.  The rest of the paragraph notes that you are allowed to make a single reproduction of a page on the site, as long as it’s just printed out or saved as a file on your computer.

Here are some examples of the kinds of things that this clause makes a violation of the TOS, as I understand it:

  • Including an excerpt from a story on the pal-item.com site in your own weblog or website
  • Sending your friend an e-mail with a headline and the first paragraph of an article pasted into it, even if it then links back to the full article on pal-item.com
  • Printing off two or more copies of an article for distribution to your friends and family because you found it interesting

Let’s move on to the clauses related to the intellectual property license you give to the Pal-Item when you use the site, which I’ll break down into chunks:

…when you submit or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose.

This basically says that when you submit information to the site – such as a comment on a story, a photo, a blog post, a forum comment, etc. – the Palladium-Item can do whatever they want with it.   For example:

  • If you submit a photo that someone else finds valuable, the Palladium-Item can sell it to them and keep all of the profit from the sale.  They could even just use your photographs in their own print products, without passing any royalties or other payment on to you.
  • If you submit a blog post that is especially insightful, the Palladium-Item can publish it in their print edition as editorial content, again without compensating you.
  • If you submit a 1,000 word comment in the forums, the paper can edit it down to 100 words and republish it as an alternate version of your comments.

All of this can be done without asking for your permission, or without even telling you about it.

Here’s the next part:

The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction.

This basically says again that even if the information you submit to the site is under some sort of copyright or trademark protection – such as a cross-posting of a blog entry from another site where you are a blog author with your own copyright terms, or such as an excerpt of a book you’re writing – the paper can still choose to sell it, edit it down, republish it elsewhere, etc.

Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.

This says that the paper can attribute to you any content that you submit.  This is generally a good thing – you get credit for your words and photos – but the language doesn’t make clear whether or not the attribution would go beyond what is publicly visible to the rest of the users of the site.  So, if you believe that you’re posting a controversial comment from behind the relative anonymity of a screen name, you might still see your real name or actual e-mail address next to your comments if they’re re-used by the paper elsewhere.  All they have to do is deem that to be appropriate.

In a separate document, the Pal-Item.com Privacy Policy, they state that “we reserve the right to use, and to disclose to third parties, all of the information collected from and about you while you are using the Site in any way and for any purpose.”  While I’m sure that the intent of the Pal-Item.com staff is good when it comes to the disclosure of your personal information, it’s still worth noting that, according to their terms, they can still technically tell the rest of the world anything they know about you, whenever they want, and possibly as a part of attributing your comments on the site to you.

This might change how you think about what you post on the site.

I’ll note here that I am not an employee or affiliate of the Palladium-Item or Gannett, and do not represent or speak for them in any way.  I am also not a lawyer; you should consult a qualified legal counsel if you have questions about the meaning and implications of these terms.

Privacy, Miscellaneous Clauses, and Conclusions

In this final installment, I’d like to highlight a few miscellaneous clauses, and make some overall conclusions about the terms of service as a whole.

Let’s start here: “It is a condition of your use of the Site that you do not… Use the Site to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind.

As with much of the language I’ve looked at, this is pretty common fare in the world of TOS documents, but it does always raise the question of who gets to decide what material is “abusive” or “vulgar” or “indecent.”  Speaking from my own experience, I’ve historically found a significant percentage of the comments posted on the Pal-Item forums to qualify as abusive or defamatory, but that doesn’t mean anyone else necessarily would.

The legal interpretation of such terms, with the exception of cases where there are clear definitions, usually comes back to community standards.  I hope that users of the Pal-Item.com site have enough of a sense of what the community standards are to avoid violating it, but I'm not sure that's the case.

It is a condition of your use of the Site that you do not… Use the Site to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising.

I’m just not sure quite what this means.  If it’s requesting that we not ever make use of the content of the site in a way that might lead to making money, that may be a difficult one for the members of the business community who do look to the Pal-Item for information about itself.  If it’s requesting that we not ever post a link to another commercial resource or website with the intent of having someone else make use of it, that also seems difficult to follow…if someone asks for a list of local pizza restaurant websites, is it a violation to respond with the list and links?  I’m not sure.

Regarding termination of accounts, the policy says, “We may cancel or terminate your right to use the Site or any part of the Site at any time without notice.

I certainly understand the desire to protect the Pal-Item site by exercising this kind of total control over it, but this kind of approach does tend to hinder true community engagement in an online conversation.  In “real life,” we don’t expect to be unconditionally ejected from a community space without some sort of conversation or advance warning.  The Pal-Item.com staff have historically done a good job of establishing a process for banning someone from the site that gives them an opportunity to shape up, so this shouldn’t be too much of a concern.  But as with other clauses, it’s worth being aware of as you decide how to participate here.

In the last installment I noted that I’d look further at the Pal-Item.com Privacy Policy.  As I noted then, the policy pretty clearly states that the paper can make use of the information it gathers about you and your use of the site in just about any way it wants, including handing it over to some “third party” of their choosing without notice to you.

A related clause notes that the advertisers on the site may also collect information about you separately from the Pal-Item, and that they may have their own privacy policies:

These third-party advertisers and ad servers may use the information they collect to help present their advertisements, to help measure and research the advertisements' effectiveness, or for other purposes. The use and collection of your information by these third-party advertisers and ad servers is governed by the relevant third-party's privacy policy and is not covered by our Privacy Policy… If you have any concerns about a third party's use of cookies or web beacons or use of your information, you should visit that party's website and review its privacy policy.

This essentially makes it our responsibility to check the privacy policies of every advertiser that places ads on the site and that might be gathering information about your browsing habits.  While this is by no means new to the world of online advertising, it would always be nice if the site hosting the ads took a more proactive approach to setting privacy standards for its advertisers when it comes to its users` data.

Please also note that as our business grows, we may buy or sell various assets. In the unlikely event that we sell some or all of our assets, or one or more of our websites is acquired by another company, information about our users may be among the transferred assets.

It’s worth noting that this basically means that even if you trust the current Pal-Item.com and Gannett staff to do reasonable things with the data they collect about you, there’s no guarantee that it won’t eventually be sold off to another entity that is less worthy of your trust.

I think that’s all of the specific clauses I wanted to cover in this discussion.  I’ve obviously singled out phrasing that is potentially troubling to me or others, but there is plenty of other language in the policies that are useful and positive, and that provide some kinds of protection for users (e.g. the Privacy Policy discusses the measures the Pal-Item takes to protect children in their potential use of the site).

But for me, all of the concerns add up to one primary conclusion: as written, the Terms of Service and Privacy Policy do not adequately protect my interests as a potential participant in the Palladium-Item’s online conversation space and interactive components. Whatever interest I have in blogging on the site is mitigated by concerns about how my submitted content could be re-used or sold without my permission.  Whatever interest I have in submitting photos or “My P-I” stories is mitigated by the same concern.  And whatever desire I have to try to engage fellow users of the site is tainted by concerns about how those conversations might be used against me at a later time, especially if I run afoul of the Palladium-Item’s or Gannett’s own corporate interests.

I would even go further to say that it’s a danger to the health of our public discourse that the Pal-Item.com site is held up as a primary online space for conversing about the issues that matter to us most, when the space itself is, by way of these policies, hostile to the kind of vulnerability, mutual respect, and protection of individual contributions necessary for such conversations.

The great thing is, these policies could be changed to address those concerns. I’m sure you’ll join me in chuckling at the remote likelihood of this, given that the language probably comes from a corporate legal office that is charged with protecting corporate assets, not encouraging open exchange and protecting the interests of site users.  BUT, it is possible, and I wouldn’t be bothering with this series of posts if I didn’t think the Palladium-Item staff might at least take some of these issues under consideration when we share our concerns.

In the end, you may still choose to participate there, as I'm sure many will continue to do.  Heck, I may still choose to participate there in some form.  But I hope these discussions have been helpful in illuminating some of the factors that affect how you participate, and what can be done with the information you submit to the Palladium-Item.

If you have your own comments or questions about the Terms of Service document or related issues, feel free to post them here.

Thanks for reading!