I reckon there’s an article to be written some time about the many test cases which have overturned website T&Cs by that very process of actually testing them in court. Indeed, the current AFACT v iiNet trial in Sydney is one such case.

@Fred Smith: 100% correct. Creators’ moral rights cannot be waived or reassigned here in Australia either. According to Australian Copyright Council Information Sheet G043:

Moral rights are personal legal rights belonging to the creators of copyright works and cannot be transferred, assigned or sold.

Only individual creators have moral rights.

Someone using copyright work may need to get consent from the creator as well as permission from the copyright owner.

Courts can award a range of damages for infringements of moral rights.

Individual creators have rights called “moral rights”, whether or not
they own copyright. These are the rights to:

• be attributed as the creator of their work;
• take action if their work is falsely attributed as being someone else’s work, or is altered by someone else but attributed as if it were unaltered; and take action if their work is distorted or treated in a way that is prejudicial to their honour or reputation.

Mind you, it doesn’t stop people trying it on…

Many businesses building their first website don’t think about this stuff at all, and just copy boilerplate legal text from another website. The most common example I see is privacy policies which don’t match how a website actually works, or how a business actually handles private information.

The result is often a policy which is misleading or in some cases even illegal — which can get you into trouble of course. But typically if the web developer offers to organise an audit of the policy against practice, or to get a lawyer to review the text, well, it all costs too much.

One of the great disappointments I had growing up was discovering that while the How and Why Wonder Books enthused about the world engineering glories, the reality was that everything was really built in a half-arsed way. Apparently politicians don’t always tell the truth either. Bastards.

If I may attempt a paraphrase… You’re seeing it as prudent business practice to cover off all eventualities by claiming all rights. I’m seeing that as too “aggressive”, for want of a better word. I’ve seen plenty of agreements which include clauses which indemnify the site against any liability for damages without taking ownership of the material.

Indeed, I’m wondering if the site were to take over ownership and “all rights” then maybe they’re also taking on all responsibility and risk by becoming the publisher.

Anyway, all a moot point now.

Just saw your latest post. Regarding your right to prepare for whatever you like, see my previous response.

Absolutely, you should understand the consequences of any agreement you sign. That’s not the argument. To publicly deface a company with claims of ‘child labour’ and ‘intillectual property theft’ based on unfounded assumption of a negative misuse of the offending clause is slanderous. Period. I’m not sure why that point is difficult to understand.

(On a side note, please take none of this as a personal attack. My attack is pointed directly at the content of the post, less so at the author. I don’t know you and can’t assume this is common of you or representative of your usual behavior and won’t pretend to have insight there. I’m actually a nice guy in real life, but you wouldn’t gather that from these posts, I’m sure.)

Thank you for taking the time to reply to me.

1) The fact that it’s common is the beside point. The point to focus on is that it’s good common business practice to protect yourself in the case of extraneous circumstance. This clause does very well to do so.

2) The assumption is that they are making a ‘naked, greedy grab for intellectual property’. I take the clause at face value, no more. The negative connotations are coming from your post. My post offers no more than a nullification of those negative views.

I make no assumption as to the intent of the company. I simply state that NO assumption can be made based on the clause, positive NOR negative. To claim I’m naive (good job taking the easy way out.. love that word) to disallow myself to jump to negative conclusions without standing to do so is ignorant and no-doubt driven by a sociopath’s perspective (and that’s an educated assumption you can take to the bank).

The clause is no more than a warning that by uploading content you are forfeiting right to it. You have the right to chose not to do so. What would be unethical would be to do so without a fair warning. And this is why we have civil court systems.

I feel you have the right to question a company having the ‘power to do what they will’ with what content you upload. I feel you do not have the right to use that as grounds for a witch-hunt. It’s unfounded.

The only assumption here came from the opening post.

3) To ask your five year old is ‘red herring’? Are you serious? What’s the entirety of the point of our disagreement? Who claims ownership of the IP, correct? If a 5 year old (initial owner of IP) is able to understand the forfeit of the IP (artwork) in exchange for having their work made into a keepsake, then so be it. Your point is officially null at that point, isn’t it? Nevermind the fact that the artwork is likely to have been created in anticipation for such an outcome. The whole idea here is that kids want to have fun and don’t give two flying shits about ‘the man’ showcasing their work to promote the tool used to create it, or the fact that they will have the right to sell their book to other people.

How do you know my concerns are unfounded, Lorren? You say you have no connection with the company, but you claim insight into their intentions.

@Neal: Ah, I was about to email you. Thanks for getting in touch.

That description of what the new User Agreement will look like sounds much closer to the mark. Please let us know when it’s online.

I’ve added an update to the original post to highlight your comment, and will also do a brief post about the change, since not everyone who subscribes to posts will have seen the comment.

I feel it’s reckless (not to mention pessimistic and negative) to assume the worst when there’s no evidence to merit such a claim. It’s like being upset about a clause in your employment contract stating that your employer can fire you for any reason what-so-ever. It sucks, but it’s very common, there to protect your employer’s liability in the case of extraneous circumstances, and is not likely.

The article makes rise to unfounded concerns and gives a bad label to a company that hasn’t earned it.

Back in the first dot-com boom, a start-up I worked for here in Sydney used some commercially-available CDs of standard document templates — the first problem being that they were based on US law and practice, not Australian. It had an employment contact which said, amongst other things, that employees agreed work whatever hours were necessary to achieve the “goals” — or if the word wasn’t “goals” it was something equivalent.

As I pointed out, the goals weren’t defined anywhere, but could be set by the CEO or the marketing department as we went along, without reference to the employees. This made it possible for quite unreasonable or even impossible goals to be set, yet the employees would still be required to work unlimited unpaid overtime.

The boss’ response was, “That’s the standard contract we use.” My response to that was, “Then it needs changing” — either to put some ceiling on the amount of unpaid overtime, or to add in suitable compensation for working beyond standard working hours or beyond some higher ceiling, or to ensure employees were involved with setting the goals and had agreed to them, or some combination of those.

@Lorren Biffin: Bollocks. As I just said, that the wording is “common” doesn’t make it any less obnoxious. If other companies use it then they, too, are behaving very, very badly in my opinion.

You say:

The company should absolutely have the right to publish submitted content to promote the site’s services.

Bollocks. If the company wants to use a user’s submissions to promote the site, they can just ask and seek permission. In fact, I imagine people would be flattered to be asked in this way, and in most cases would be more than happy to grant permissions.

Even if the company feel the need to have pre-approval rather than having to ask — lazy sods! — then the clause could say “for the purposes of promoting the Site in any media”, not “for all purposes” and “unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise”.

And even with all that, there’s absolutely no need whatsoever to claim the author’s moral rights, such as the right to be identified as the author of the work.

In all of this, I think the reasonable principle to follow is to obtain the rights which you actually need for the purposes of running the Site, and no more. Anything more is a just naked, greedy grab for intellectual property.

You think it’s “simple minded” to work on what the legal document actually says rather than an imagined intent of the company? Really? I think it’s very much the other way around. To work on some assumption of the company’s intent — based on what, by the way? the pastel colours? the smiling children? — is naive.

Asking a 5-year-old what they think about the deal is a red herring. A 5-year-old doesn’t have what it takes to understand what they’re trading away — which is precisely why, for example, anyone under the age of 13 is not allowed to sign up for online accounts without their parents’ involvement, both here in Australia and in the US.

But you’re right, Lorren, we should seek a response from Tikatok. I shall do so now.

… 2) Tickatok’s intention is NOT to sell your family photos to third parties for gain. …