Decoding the new economy

You hold us harmless

How the terms of social media sites risk your assets and their business

Social media site Pinterest was recently caught in one of the ongoing quandaries of social media – the ownership of content.

The subject is tricky; social media sites rely on a vibrant community of users posting news and interesting things for their online friends.

Unfortunately many of things social media users post are someone else’s property, so almost every service has a boilerplate legal indemnity term like Pinterest’s.

You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.

Facebook have similar terms (clause 15.1) as do LinkedIn (clause 2.E) and Tumblr (clause 15). Interestingly, Google’s master terms of service only holds businesses liable for the company’s legal costs, not individuals.

Boilerplate terms like these are necessary to provide at least an illusion of legal protections for investors – those venture capital investors, greater fool buyers or punters jumping into the latest hot technology stock offering need a fig leaf that covers the real risk of being sued for copyright infringement by one of their users.

The risk in these terms shouldn’t be understated; by agreeing to them a user assumes the liability of any costs the service incurs from the user’s posts. Those costs don’t have to be a successful lawsuit against the service, it could be something as minor as responding to a lawyer’s nastygram or DMCA takedown notice.

Of course, none of the major social media platforms have any intention of using these indemnity terms; they know that the first time they go after a user all trust in the service will evaporate and their business collapse.

Somewhere among the thousands of social media services though there is going to be one that will pull this stunt. Strapped for cash and slapped with an outrageous claim for copyright damages, the company’s board will settle then send out their own demands to the users responsible.

Those “responsible” users – probably white, middle class folk sitting in somewhere in the US Midwest, South East England or North Island of New Zealand – will be baffled by the legal demand that requires them to file a defense somewhere obscure in California or Texas and will go to their lawyer friends.

When the lawyers tell them what it means their next step will be to their local news outlet.

The moment the story of a middle class person facing losing all their assets hits the wires is the moment the entire social media business model starts to wobble.

In many ways what the social media sites are trying to do is offset risk.

Risk though is like toothpaste. Squeeze the tube in one place and the pressure moves elsewhere.

By laying off a real risk by using legal terms the social media sites create new, even bigger risks elsewhere in their business.

The dumb thing is these terms really don’t protect the services anyway – it’s unlikely the typical social media user will have anything like the assets to cover the costs of a major copyright action by a rich, determined plaintiff.

It’s going to be interesting to see how many services still have these indemnity clauses in 12 months.

For the industry’s sake, the big players will need to have ditched these terms before that first dumb attempt to claim damages from users hits the wires.

When tails wag dogs

Have essential functions taken over business?

A recent Business Insider examination of how patent “aggregator” Intellectual Ventures works is a good example of one of the problems in modern business – essential ancillary processes have overtaken doing business itself.

Intellectual property rights are an important part of doing business, however what should be an adjunct to doing business has consumed many enterprises.

As the Business Insider article point out, Intellectual Ventures has become some sort of modern day privateer, extracting loot from hapless companies that cross its path.

This problem with intellectual property is part of a larger problem with lawyers, where they have been given too important a role in business.

In any civilised society lawyers are essential and carry out an important role but in western society over the last fifty the scope of the legal system has expanded so dramatically that now the legal tail wags the business dog.

Today company directors, business owners and entrepreneurs live under the shadow of breaching some obscure law that they had no inkling existed. Of course, the lawyers can help with this.

A similar thing has happened in the financial world, accountants have also moved from being an essential adjunct of business into being at the centre of most enterprises.

Much of this explosion in lawyering and accounting has been due to the increased role of government in our lives; each time a new law or regulation is enacted it makes it harder for the average person, or business owner, to understand the system.

A cynic can argue this is by design but most government actions are intended to address some injustice or flaw in society. The problem is there are always unintended consequences.

One can also argue that the increased growth in business overheads like lawyers, accountants and patent attorneys is because of fat, prosperous business conditions.

So maybe what western business has seen in the last fifty years has been because of a favorable market place; politicians have introduced a morass of often contradictory financial and legal rules because they know business, and society, can afford it.

Now times have changed and both business and society can’t afford unnecessary overheads it will be interesting to see exactly how our laws and regulations evolve to respond.

Maybe they won’t and we’ll see a black economy develop where whole groups of society ignore the rules, dispense with lawyers and accountants and hope for the best. This would not be good.

Possibly we’ll see legislatures and courts winding back and reigning in some of the more silly and egregious excesses as they recognise society can’t carry the burden and remain productive.

Whatever happens we can be sure the lawyers, accountants and people like Intellectual Ventures will fight hard against any change that reduces their status and income.

Paying the piper – the cost of the internet’s walled gardens

The web’s walled gardens have a real business cost

With the web increasingly dominated by four major, and many minor, fiefdoms the cost of being part of those groups is gradually becoming clear.

As part of Facebook filings in advance of their public float they published the key agreements with their developer partners including that with games provider Zygna, technology journalist Tom Foremski has a disturbing look at Facebook’s conditions that illustrate the costs and risks.

In terms of the costs, Tom identifies Clause 2.1 of Facebook’s “Statement of Rights and Responsibilities” – shown as Annex 1 in the Developers as probably the biggest price for all content creators;

… you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

So by sharing something on Facebook, you grant Facebook the right to do what they like with what you’ve created. That’s something worth thinking about.

For anybody trying to make a living off Facebook, it’s important to consider they also retain the right to throw you off the service at any time. From clause 4.10 of the Statement Of Rights Annex;

If you select a username for your account we reserve the right to remove or reclaim it if we believe appropriate (such as when a trademark owner complains about a username that does not closely relate to a user’s actual name).

So get into a trademark dispute with a big corporation – and often their lawyers cast a very wide net on potential similar spellings – and your account is shut down.

There’s also the specifics of the Zynga agreement that should concern anyone investing in the games company. Right at the beginning of the agreement we see this clause;

The parties further acknowledge that Zynga is making a significant commitment to the Facebook Platform (i.e., using Facebook as the exclusive Social Platform on the Zynga Properties and granting FB certain title exclusivities to Zynga games on the Facebook Platform). In exchange for such commitment, [*] the parties have committed to set certain growth targets for monthly unique users of Covered Zynga Games.

So Zynga is closely tied into the fortunes of Facebook, we knew that on a business level but now we know just how deep and binding the agreements are.

We should be clear, all the major social media and online services have similar clauses on intellectual property and copyright infringements; there’s no shortage of businesses who’ve been caught out by eBay or Paypal and plenty of people found their Google accounts shut down by their obsession with real names.

For all businesses the message is clear – be careful before committing totally to one online platform or another. Should you end up in a dispute, or find you’ve backed the wrong service, it may be a very costly process to get your company off that platform.

The social maze

What are the risks in business social media?

Towards the end of 2011 we saw a surge of stories about companies and employees fighting over the ownership of corporate social media accounts like LinkedIn contacts and Twitter feeds.

For the social media community this is encouraging as it shows that businesses are beginning understand there the value in online networks. It also illustrates the risks for both businesses and employees when these tools aren’t properly understood in the workplace.

The employer’s risks

As social media sites are one of ways businesses communicate with the public, managers have to understand these services are an asset too important to be left to the intern or youngest staff member in the office.

Should that intern move on – possibly at the next college semester – the business may find they are locked out of the account or it is even deleted.

Business pages and accounts should be set up in the name of senior people in the organisation and, where possible, administration should be shared by the relevant unit in the organisation (customer support, marketing or whatever).

The nominal owner and administrators should understand that the account is the property of the business and all posts on it will be work related and not personal.

When one of the administrators or owners leave the organisation, login details should be handed over and passwords need to be changed. Where possible, the ownership should be changed to another employee – this is one of the current problems with Google+ accounts at the moment.

Employers need to understand that the professional contacts individuals make during the course of their work isn’t their property, so trying to claim the personal LinkedIn contacts and Twitter followers of an employee’s private account probably will not be successful.

Similarly social media services like LinkedIn are not Customer Relationship Management programs (CRMs) and using them that way, as a company called Edcomm did, will almost certainly end up with problems and a possible dispute.

Traps for employees

When given a work social media account to maintain, it’s best to consider it as being like your work email – it’s best to use it for business related purposes only and you’ll have to give it up when you leave the organisation.

If you’re being held out as a representative of the business, as we see in the Phonedog_Noah dispute over a business Twitter account, then it’s best to set up a private account for your own use and not use the business account after leaving the organisation, even if they don’t ask for it when you leave.

On sites like LinkedIn and Facebook you should change your employment status as soon as you leave an organisation to make it clear you’re no longer working there. If you’ve left on bad terms, resist the temptation to insult your former employer when you change your details.

Staff using social media have to be aware that can be held accountable in the workplace for things they do on their personal online accounts; sexual harassment, abusing customers and workplace bullying through a Facebook or Twitter account can all result in disciplinary action.

In many ways the disputes we’re seeing on social media services reflect what we’ve seen in many other fields over the years – the ownership of intellectual property, professional contacts and even access to websites have all been thoroughly covered by the courts over the years and there’s little in these disagreements that would surprise a good lawyer.

With all business disputes though, it’s best to resolve them before lawyers and writs start being involved. Clearly defining and understanding what is expected of both employers and staff can save a lot of cost and stress.

The saddest sign you’ll ever see

When a landlord takes possession of a business, there’s a lot of pain behind the signs.

The sign on an abandoned business announcing “Landlord taken possession” usually hides a pile of pain and distress.

It’s not cheap or easy for a landlord to take possession of a business premises and for most to do so it’s usually the end of long period of unpaid bills and broken promises.

Behind that sign is usually months, if not years, of stress and despair as a business owner has held onto a failing enterprise, bluffing their landlord, their suppliers, their staff, their own families and often themselves.

Almost every one of those signs has a story of failed relationships, destroyed friendships and ruined marriages.

Often they didn’t understand the cost of doing business and in many cases because they hadn’t consulted a bookkeeper or accountant earlier they didn’t understand their venture was always loss making despite what appeared to be a healthy cashflow.

When the truth about the businesses becomes obvious, life for the honest owner of a failing enterprise tries to bluff themselves and those around them that things will be okay, that the dream is still alive.

This is what worries me about many of the businesses that participate in group buying deals, they are desperate to keep their business afloat and believe the cashflow or publicity will save their failing venture. Even worse, many don’t understand how that “50% off” deal will affect their ability to pay staff and the landlord.

Even where the failed proprietor has been one the “two percenters” – the 2% of our society that runs their affairs with no regard for the pain and suffering of those they hurt – many people, particularly the smaller suppliers and low paid workers, have taken a hit as bills went unpaid and promises were not kept.

Most business owners though believe in their idea or vision and work long and hard in an attempt to achieve it. The majority of those who end up with the landlord taking possession are often those who ignored the signs and believed things would come good next season, next month or next week.

I’m always saddened when I see a “landlord taken possession” sign like the one near me in the window of what was an Italian restaurant until recently. What’s the saddest business sign you see?

Other peoples’ platforms

The risks in the privately owned web range from obscure terms of service to arbitrary payment problems. This is why you need to control as much of your business’ online presence as possible.

“We have successfully established an online business, but we have run into problems with Ebay (indefinite suspension – unfairly I might add)” wrote Ralph*, an old client.

“We are pretty desperate, as this is now our sole business and we are now without an income.”

The Privately Owned Web

Ralph’s problem is typical of thousands of businesses that rely on one Internet service. Some months back we looked at “Nipplegate”, the story of a Sydney jeweller who had her Facebook page closed down because of her anatomically correct dolls.

All of these services are privately owned with their own terms and conditions along with their own corporate objectives. If you choose to use their product, you have to follow their rules – just like a shopping mall management can order you off their premises because they don’t like the colour of your socks.

The most glaring example of this is Wikileaks where Amazon, Paypal, Mastercard and Visa all threw the whistleblower site off their services for allegedly breaching their terms of services in various obscure ways.

The Terms of Service Trap

A business’ Terms of Service usually feature clauses wide enough to catch even the most honest and diligent business, this is by design as it gives management the excuse to throw anyone who makes their lives difficult, which is exactly what has happened with Wikileaks.

While Ralph’s problem is nothing like the scale of Julian Assange’s, all of these stories illustrate the dangers of relying on one service for your livelihood. Should that service change the way it operates, then any business that relies on that could be broke in hours, as many businesses that rely on Google search results have found.

Most of the Internet is not a public space, almost all of it is privately run along similar lines to that shopping mall or a walled estate.

Ralph and Julian Assange have shown us the limitations and risks of the privately operated web. As citizens and business owners we have to understand these corporations’ objectives are not always the same as ours and make judgements on how we live with the risk of finding ourselves in breach of a Term of Service in our business or personal lives.

We’re still in relatively early days of the net and all of us are still learning. One lesson is clear though, we can’t allow our livelihoods to be held hostage by a small number of big technology companies. Make sure you have alternatives to your online channels.

*Ralph is not his real name

The downside of social media marketing

Social media is a great business marketing tool, but it has downsides as a Sydney jeweller learned

Until last Sunday, Facebook was working well for jeweller Victoria Buckley; the page for her store in Sydney’s upmarket Strand Arcade was generating sales and had a rapidly growing fan base from around the world.

One of the key parts of her marketing campaigns are porcelain dolls made by the Canadian designer Marina Bychkova. Her classic doll Ophelia features in the window displays, on posters in the store and on the shop’s Facebook page.

Ophelia is a little bit different to most dolls in that she’s naked and anatomically correct — she has nipples.

Last weekend Victoria received six warnings from Facebook about “inappropriate content” on her page. There was no indication of which images or text broke the rules or what would happen to her page if she took no action.

“The frustrating thing is I can’t pinpoint which images” says Victoria, who goes on to point out that over the year she’s used Ophelia in her marketing, including two large banners in the busy shopping precinct, she’s received no complaints.

“It’s all a bit arbitrary”, says Victoria “it only takes one anonymous person to click on the flag content button and there’s a problem”. Earlier this year her Flickr account was set to restricted because of Ophelia’s nudity.

To avoid problems, Victoria has blacked out any potentially inappropriate parts of Ophelia on the store’s Facebook profile and started a “Save Ophelia- exquisite doll censored by Facebook” group until she can resolve the issue.

But here lies another problem; she can’t find a way to contact Facebook. “It’s become an increasingly important part of the business” Victoria says of the Facebook page and “I just don’t know what’s going to happen to the site”.

Right now Victoria has no idea what is going to happen to her business’s profile. As she can’t talk to Facebook, she’s uncertain of the page’s future.

This uncertainty illustrates an overlooked issue with social media sites. All these services are proprietary, run by private organizations to their own rules and business objectives.

In many ways, they are like private mall owners. They are perfectly entitled to dictate what merchants and customers can do on their premises. If you don’t like it, you have no recourse but to take your business elsewhere.

As consequence these sites have a great deal of control over your online business, a lesson that’s been hard learned by many eBay and PayPal dependent Internet retailers.

A good example of what can go wrong are the Geocities websites. Ten years ago Geocities was a popular free hosting site used by many micro businesses and hobbyists. Just over a year ago the now parent company Yahoo! shut them down and all the data on them has been lost.

By relying another company’s Internet platform, you are effectively making them a partner in your business. That’s great while things go well, but you have to remember their business objectives and moral values are different to yours.

This is why a business website is essential; your traffic and all your intellectual property is too important to sit on another businesses’ website with all the risks that go along with that.

The lesson is that while using Facebook, Twitter and other Internet services are an important part of the business marketing mix, your business needs the security of its own website and all your marketing channels, both online and offline, should point to it.

Fortunately Victoria’s across that, she’s pointing her Facebook fans to her website telling them, “You can join my independent mailing list at this link, in case they get really stupid and close this group.”

Tag: legal

When tails wag dogs

Similar posts:

The saddest sign you’ll ever see

Similar posts: