Mark Tribe on Tue, 20 Nov 2001 07:25:19 +0100 (CET)

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<nettime> Re: Member Agreement

Dear Rhizomers and nettimers:

In recent days, there has been some discussion of Rhizome's new Member
Agreement on nettime. The second paragrah of Section 2 ("Your Content")
has come under particular scrutiny. My responses are below. But first, for
reference, is that paragraph:

+ + +

You grant a non-exclusive, worldwide, royalty-free, perpetual
license to: (i) store Your Content on's servers; (ii)  
distribute Your Content on the web site and through email
lists; and (iii) reproduce, publish, perform, display, adapt, distribute
or otherwise make available Your Content in web sites, books, CD-ROMs or
any other form or medium whatsoever, whether now known or as may hereafter
be developed.

+ + +

It should be noted that the previous version of our member agreement also
granted Rhizome broad rights to reproduce, publish (etc.) content in other
media. More below on why we think this is not only necessary, but also in
fact a good idea.

Of the many changes to this new agreement, the most significant is that,
in this version, we made it easy for members to opt out by including the
the following language in their post: "NOT FOR DISTRIBUTION EXCEPT ON

Most of the other changes were about updating the agreement to reflect
changes in our programs (e.g. the old agreement mentioned only Rhizome Raw
and Rhizome Digest--we now have a few other lists).

On Nov 15, Declan McCullagh <> wrote:
 >That is, of course, breathtakingly broad, and far more than what's
 >required to host or distribute stuff online. Yahoo tried just this,
 >and backed down (its Geocities site) after public outcry. Rhizome
 >seems to let you opt-out of part of this clause, but it's not clear to
 >me how much wiggle room you have, or how many people will read
 >the fine print and choose to opt-out.

You're right to be sceptical, Declan, but I don't think it's fair to
compare us to Yahoo! (a publicly-traded for-profit company). Rhizome is a
not-for-profit organization. The purpose of clause (iii) is to facilitate
our making content available in the future, whether that be in print or in
some medium that does not yet exist. It would be inordinately difficult to
negotiate all the the rights with all the contributors, recent and not so
recent, afresh every time we might want to do so. The effect of being
required to do so, given our limited resources, would be to prevent this
community content from outliving the Rhizome web site. It would be
short-sighted and irresponsible for us to construct an archive that
couldn't be preserved for the long-term.

The opt-out language that follows in the agreement can hardly be called
fine print. It's in ALL CAPS!

I'm not sure what you mean by "wiggle room." If you don't want your
content used beyond the Rhizome web site, opt out. Regardless, we
certainly wouldn't include someone's content in a book, CD-ROM or anything
else if they made it clear they didn't want it there, whether or not they
had opted out at the start.

On Nov 16, Mark Dery"<> then wrote:

 >It's the last part [clause (iii)], with its (at least theoretical) 
potential for
 >generating revenue for Rhizome from the sale of someone else's intellectual
 >property that seems grabby---not to mention weirdly hegemonic, in the good
 >old _New York Times_-ian sense, for a site that wraps itself in the 
mantle of
 >Mister Destratification, Gilles Deleuze.

Steve Cisler <> responded:

 >I have seen this sort of language used by academic presses, non-profits,
 >startups, and anyone else who finds all the horsetrading (i.e. annoying
 >negotiation) about rights and permissions to be too time consuming.
 >One example from the 1990's. The Public Broadcasting System had a
 >critically well received program on Martin Luther King Jr. It was several
 >hours long and they wanted to re-purpose it ( a favorite old term of 
 >producers) in laser disc (a format that had its ups and downs in the past
 >couple of decades). As they renogotiated all the scripts, photos, 
 >with writers, actors, photographers, audio engineers, it became so expensive
 >and drawn out that the new product could not be sold for a price that would
 >have been acceptable to schools and other organizations in the target 
 >I think it was subsidized partly, and only because of that did it get 

Mark Dery then responded:

 >No question, we live at a time when hyperlitigious corporations have
 >perverted copyright law beyond recognition. (Didn't Disney once
 >threatened to sue, for copyright infringement, a man who had
 >everyone's favorite talking rodent tattooed on his back?) But there's
 >a quick-and-dirty solution to the problem you mention. If a non-profit
 >organization like Rhizome, which I've always assumed is on the side
 >of the angels, wants to archive my contribution to the living sculpture
 >that is its community, fine and well. But if it decides to monetize (!)
 >that community, I want a piece of any revenues that result from the
 >sale of my intellectual contributions to that community.
 >In other words, if you never commodify the collective work to which
 >I've contributed freely, pay me nothing. Or, if you commodify it but
 >only with the non-profit goal of benefitting the public good, as in your
 >PBS laserdisc example, pay me nothing. But if you *turn a profit*
 >from the sale of my commodified words and ideas, I want buck.
 >As one of the wretched of the earth, also known as freelance writers,
 >this seems self-evident.

Yup. This really isn't about ripping people off or making a profit (not
that there's profit to be made doing what we do anyway, but that's another
ball of wax). It's about building a resource for the community. We may
someday find a way to generate revenue from the content we've been
gathering. If so, we would be bound by law, and by our own convictions, to
use that revenue to further our nonprofit mission, which is to provide an
online platform for the global new media art community and to foster the
creation, presentation, discussion and preservation of new media art.


Mark Tribe

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