Tuesday, October 23

Screwing Originators: How To Do Things


Flattery will get you everywhere. At least that's what HowToDoThings.com seems to think.

“We recently visited your website's copywriteink.com page and thought that as a trusted expert in the field, you might want to write a "how to" article or articles on a topic that you are knowledgeable and passionate about.”

I declined, with exception to one tiny part (explained later), but not because it was a form letter. I declined because if you put aside the gratuitous e-mail and read their content submission agreement, you might find one of the most overreaching and abusive policies that I’ve ever had the privilege, er, pain, to read.

Sure, I’m not an attorney and this is not legal advice, but even slivers of HowToDoThings’ 4-page “take everything, leave nothing” submission policy provides a very clear picture of why content originators (bloggers, writers, etc.) need to read, very carefully, any such terms before entrusting their content to anyone.

You hereby irrevocably assign, transfer, and quitclaim to HowToDoThings (or such third party/ies as HowToDoThings may elect) all right, title, and interest. You may have or hereafter acquire in and to all Published Content, either directly or indirectly, along with all intellectual property rights and other proprietary rights relating to all Published Content, including any and all registrations with respect thereto, whether foreign or domestic, and all renewals and extensions thereof, as well as related rights of priority under international conventions, and all rights to sue and recover damages for past infringements.

Right. For the promise of a 50-50 Google AdSense split on that page (according to the e-mail), the originator would surrender all rights, indefinitely, including intellectual property rights that are a derivative of the work, to the site. That’s terrible and it gets worse.

You authorize HowToDoThings and its successors and assigns to use one or more of the following: (a) your name; (b) pertinent biographical information relating to You; and (c) your likeness in connection with the publication of any Published Content, as well as any derivative works based upon any Published Content, without further compensation or consideration to You, and without your further review or consent.

In other words, not only will they own the originator’s content, but the originator’s likeness and name as well, and reserve the right to attach it to derivative works without review or consent. And there’s more.

If HowToDoThings requests that You sign any documents or take any other actions to confirm the rights granted under this Agreement, You agree to do so. You hereby irrevocably appoint HowToDoThings as your attorney-in-fact (which appointment is coupled with an interest) for the purpose of executing such documents on your behalf.

Not only would the originator sign over their content, likeness, and intellectual property rights related to the work, but also appoint HowToDoThings as their attorney-in-fact, indefinitely, with permission to act on their behalf. All this despite another provision that claims this is not an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship. Unless, of course, there is any libel or copyright infringement. Then, the originator is on their own to protect what the site claims as their property. And there’s more.

You hereby grant to HowToDoThings the exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide right and license (including the right to sublicense through multiple tiers of sublicensees) to use, reproduce, publish in any form, whether tangible or electronic, and sell all Published Content.

I know what some might think. In a world where people are so willing to share, isn’t it a genuine offer to split Google AdSense? Unfortunately, there is no provision of this in the submission agreement. But there is a provision about such promises.

This Agreement, together with the Guidelines, which are incorporated into and made a part of this Agreement, each as in effect and posted on the Site from time to time, constitute the entire agreement between You and HowToDoThings and supersede all prior understandings, whether written or oral with regard to the subject matter of this Agreement.

Add to all this a termination agreement that allows HowToDoThings to terminate the agreement at anytime (with them keeping your content, likeness, and intellectual property rights), and it’s easy to see why content originators need to read these agreements closer than ever. That is, unless you can afford to pursue arbitration in San Mateo County, Calif., which is your only recourse according to the agreement. So what tiny part of what they are doing do I agree to?

We are actively looking for your feedback on our site.

Okay, here is some feedback: I think the submission agreement makes HowToDoThings look like an online piranha, attempting to take advantage of and prey off of less experienced content originators by stealing away their rights, names, likenesses, and intellectual property for the promise of, well, nothing and the loss of, well, everything.

The only rights online publishers need to request is first electronic rights, which would grant such a site the right to publish original content first, perhaps with a built-in provision that the originator cannot resell the material for a set time period, not to exceed 30-60 days. While it makes sense for publishers to retain bylines and likenesses with the published content, it is ridiculous to ask for any provision that assigns such identifiers to derivative works that may or may not have anything to do with the originator.

By the way, it also pays to read the terms of social networks. Some are playing shell games too, claiming to be distribution channels on one hand and publishers on the other hand. Their definition depends exclusively on their win factor.

Digg!

13 comments:

Jericho Saved on 10/23/07, 10:49 AM said...

Thanks Rich. Interesting read. I hope people aren't being fooled into doing this. It definitely pays to read the fine print. This is Nuts!

Rich on 10/23/07, 11:32 AM said...

You're welcome Jane,

I just don't want to see writers get taken advantage of because they are anxious to see their name published by someone else. Can you imagine?

What if you had published your Lennie James interview on such a site, only to find out you could not legally publish it on your own blog? Yikes. Worse, they could publish a book with that interview and you would never see a dime.

It's not right. I think they might be ashamed of themselves. But I am thankful they provided a great example so writers pay closer attention to their terms of service and submission policies.

The only time that make sense is on Work For Hire jobs, but those do not generally include a byline anyway and the pay is better. But that is night and day to what this site is doing.

All my best,
Rich

Valeria Maltoni on 10/23/07, 11:57 AM said...

I used your post today as an example to someone else. Good food for thought.

Kim on 10/23/07, 12:23 PM said...

The site in question provides a wealth of hilariously useless articles and is a fountain of misinformation.

How to induce labor. (I left that one to my physician, thank you.) How to start a conversation. (My third grader could have written this one). How to cook food on your car engine. (Some people have WAY too much time on their hands).

I pity the poor reader who takes any of their "expert" advice, especially medical advice.

Rich on 10/23/07, 12:38 PM said...

Valeria,

Thank you. Glad it could be useful. Please share the example when you have the time. I'm always interested.

Kim,

Thanks for digging a little deeper. While that places the emphasis on the content contributer, maybe it demonstrates that overreaching terms will never attract experts.

Really, I think writers would better off simply designating their work public domain than assigning all rights away.

Best,
Rich

Jericho Saved on 10/23/07, 1:35 PM said...

Rich, nobody gets my Lennie James interview. Ha. However, I may have to read that one about cooking on a car engine. I'm sure that's information we can all use. Thanks Kim.

Anonymous said...

A few years ago a company signed up a lot of singers who later discovered the company owned all copies of their songs and performances. It was "friends" and they figured it was okay and didn't read.

I wonder how many people sign this without even looking it over. This is outragious.

Could have been written by the folks who wrote that Kid Nation agreement.

Nightbird

terocious on 10/23/07, 4:41 PM said...

They did provide a sparkling example of why these agreements need to be scrutinized.

Thank You Rich for looking out for us.

Hawksdomain on 10/24/07, 3:58 AM said...

Unbelievable. More importantly, frightening. Frightening with all of the misinformation that can be found on the web that there is actually a site that gathers such things and then takes advantages of the originator like this.

Jonathan Bailey on 10/24/07, 9:33 AM said...

These submission agreements keep reaching farther and farther into the land of the ridiculous. YouTube isn't much better, Fark made a huge mistake in this area a while back and, well, the list goes on.

A lot of times this stems from excessive covering of one's posterior. Wanting to make sure that any future decision they might make won't require them to get new permissions.

Other times it is ignorance, as with Fark, where non lawyers or bad ones right the agreements.

Then there are the true sharks, like what this site appears to be. Their rights grab appears to be very deliberate and well planned.

So, thank you for the warning on this site. They haven't written me yet seeking such an article, at least not in a way that has reached my inbox. If they do I'll know what to say.

Then again, they'd be a fool. to try me. Like you, I actually read those agreements.

Rich on 10/24/07, 12:01 PM said...

Thank you all for these comments. I really appreciate it.

I think the feedback is shaping up to be very clear: change the agreement and perhaps HowToDoThings may attract better contributors and better content.

It's a good lesson for other online publishers as well. Content originators are becoming more knowledgeable about their rights.

Best,
Rich

Anonymous said...

Rich
excellent Piece - It was like you were looking into my world and a situation that I am currently in with regards to everything mentioned.

Currently My name and Professional information is being held hostage on a site which will not remove Disable my profile - this actually though is CONTRARY to their TSA/Privacy agreement.. as members are allowed to Disable their profiles (which will remove their content) at anytime. Well that is of course Everyone else except for me..

Their comments are that they

So today I am held hostage to a site that will NOT allow me ANY access to my information; that includes Not even the Ability to View my data, articles, Forums that I created and my members to those forums, or even my posts.


In investigating the "legal" aspects of these agreements, and networks, I have discovered some really interesting information that your readers may find of interest regarding certain aspects and conditions to these agreements that even these companies don't realize which allow these agreements to become null and void.

Which makes me wonder, do many of these companies make these terms up as they go? Do they actually have attornies who are informed of the laws of the internet? or again, are they just hodgepoding it?

I want to say sorry in advance for the Legal jargon below, but, hopefully some may find this to be very useful and informative.

YES We do have rights, and YES many of these TSA's Can be definitely Challenged.. just like Non Competes..

Don't let these Jerks own us.. and don't let them continue to abuse us.

The reason they think they can get away with these type of agreements, is because We Are Uninformed about our rights so, we just accept!

Also many of these companies have NO Problem using the Big boy bully attitude to intimidate and so many will put their hands in the air and go why bother!

WE should be aware that we Do deserve and have the Right to equal use of OUR information, especially if the company is NOT compensating for their useage, and they make profit from that usage.

And Yes, the Long Arm of the Law does stretch as well in regards to some of these cases.. Yes indeed, you can Fight for Jurisdiction within your Own state, especially if the company is extremely active financially throughout the country. Which then says Poohy to their restictive arbitration clauses

----------
1 Many of these agreements are too restrictive. For a contract/agreement to be valid there must be three elements offer acceptance and consideration.. that must be fair and equal for both..
If they are too stringent, and exploitive, the results can actually be a lawsuit against the other party instead.. Comparison - a very restrictive employment agreement, with a perpetual statute of limitation. That of course won't fly! Same as some of these agreements as well.

2 - the clauses cannot be Vague, incomplete, clouded, or uncertain in any way.. Ever read the ambiguity in these contracts? well that ambiguity (loopholes) can void those TSA's immediately

3 These sites can’t unilaterally change the terms of a contract - even if they do have in their agreements that You accept any changes at any time by being a member.. NOT SO!! This li'l issue here, well it will null and void a contract immediately. This includes ALL material changes to the policies.. and Privacy terms.

4- As does not having an acknowledgement agreements of terms AND PRIVACY PRIOR to submission and the TSA must be Prominently available on the site, in caps and bold..

5 - rights to publisher and the originator MUST be clearly defined.. What are the publisher's rights and what are the orginators rights. What specifically can they or can they not do, and what do they "gain" from this - what is the implied non-exclusive license - see also 1 - FYI, it should also cover an exit strategy.. this can also create a big problem..

6 Here is a really interesting factor as well.. wonder if it could be done in reverse "Copyright - No Implied Right for Publishers to Resell Articles to Electronic Databases On June 25, 2001, the Supreme Court held that publishers who had previously purchased from freelance authors the rights to print their articles, could not resell the articles electronically without providing additional compensation to the authors" quoted

7 Arbitration agreements must be fair and reasonable and Not biased to the company. If it is too oppressive, well that also voids the tsa

Thanks for your patience. Should anyone be willing to contact me about my situation, I am definitely willing to share the full story.

Karen Mattonen
858-668-3111
acssearch a t prodigy.net

OMYWORD! on 10/28/07, 4:24 AM said...

Man...THIS was certainly worth reading. Thanks very much, Rich.

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