Mark Tribe on Tue, 27 Nov 2001 04:13:03 +0100 (CET)

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Re: <nettime> Re: Member Agreement

At 10:44 PM 11/20/2001, Declan McCullagh wrote:
>Thanks for your note. I hardly mean to pick on -- as
>a photographer and writer, I appreciate what you're doing, and believe
>the world is a better place because of your efforts.


>On Mon, Nov 19, 2001 at 03:30:55PM -0800, Mark Tribe wrote:
> > 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.
>The above is the default language, and I understand folks can opt-out,
>but as we keep hearing in debates over Microsoft suckfulness, defaults
>matter, and many folks won't read the details of the contract. How many
>folks have read shrink-wrap licenses in detail?

Right. One way to make it clearer would be for us to put a reminder about 
the opt-out on our email subscription page and in the welcome email people 
get when they subscribe. Also, when people can post via the web (hopefully 
next year), we could add an opt out button of some kind to make it easier.

>For the folks who don't read the language, they may find books, CDROMs,
>etc. with their own content on -- and for which the artist makes no
>money ("royalty-free") -- competing with their own work for which they
>do make money.

In general, we're talking about content that has little or no independent 
commercial value (like this post). The aggregate (i.e. the entire Rhizome 
TextBase) might someday have some commercial value, but the most likely 
scenario in which the clause in question would be relevant is a future in 
which Rhizome migrates to some new platform (e.g. WAP). We will also use 
our best judgement. For example, if we were to publish a book, we would not 
include the chapters of *The Language of New Media* that Lev Manovich 
posted to Rhizome Raw without first getting his explicit permission, even 
though the member agreement that was in effect when he posted them gives us 
the right to do so.

> > 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
>I'm not comparing the type of enterprise you are; I'm comparing the
>language you're suing. Yahoo demanded a "royalty-free, perpetual,
>irrevocable, non-exclusive and fully sublicensable right and license
>to use, reproduce, modify, adapt, publish, translate, create
>derivative works from, distribute, perform and display such Content"
>in any form or media, which is a close cousin to what the
>contract says. Yahoo, BTW, backed down. See:

The language may sound similar but the there are some key differences. Two 
that jump out: our agreement is not irrevocable and the rights we ask for 
are not sublicensable.

>I'd make a few more points:
>* Defaults matter; it's not clear that everyone reads legalese

Agreed. But there are things we can do to commuicate with members outside 
of the agreement.

>*It's not clear needs a "perpetual" license for "all"
>types of media -- don't tell me, lawyers wrote the contract?

We wrote it with some help from lawyers, yes. Regardless, asking for a 
time-limited license for certain media would be short-sighted, IMO.

>* It seems likely that the folks will do the right thing
>based on artists' wishes in any case.

Thanks for giving us the benefit of the doubt!

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