On Couchsurfing's New Terms of Service
2 Sep 2012 00:43:34 EST
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Recently Couchsurfing sent out an email about their new terms of service. I took a look, and was pretty surprised - even in the world of ridiculous Terms of Services, this one seemed over the top. I fired off a quick rantly message through the only feedback system I could find, tweeted about it, and planned on deleting myself a short while later. However, they replied back to me politely and generically, and I realized I needed to send a more structured response. Below are the first four major things that jumped out at me that I take issue with the new Couchsurfing Terms of Service, as compared to several other major sites' terms. If you likewise think the terms aren't well thought out, I'd encourage you to drop them a polite email as well. The email chain I'm responding to is at the very bottom of the post.

My second email to them

I understand your lawyers want you to cover your ass - and of course there needs to be some permission licensing the content. I'm not uninitiated to the process - so I'm not complaining in the general "you can't do this, this is crazy" stance - I'm complaining in the specific "Even in the world of overly broad Terms of Service - yours is Super-Overly-Broad". I'm not a lawyer but I am interested in this stuff, and from my research here's what I've come up with.

Several of the things I take issue with:

  1. There is no regard to member ownership of content, beyond stating that the member must own the content they upload.
  2. There is no regard to the privacy settings of Couchsurfing Profiles, nor deletion of member content
  3. There is overbroad permission for your use of the content
  4. There is really strange language relating to granting you permission to use my Identity.

I'll reference several other Terms of Services for similar websites, linked at the end.

Regarding #1: Facebook's, yFrog/ImageShack, Yahoo/Flickr's, and MySpace's explicitly state they do not claim ownership of any content, while you do not.

Regarding #2: Facebook takes the same "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content" clause - but they explicitly state that this is subject to the user's Privacy Settings _and_ that the license ends "when you delete your IP content or your account". MySpace's likewise mentions Privacy settings: "except that Content marked 'private' will not be distributed by Myspace outside the Myspace Services and Linked Services" and "After you remove your Content from the Myspace Services we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate." Flickr too: "This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services." And yFrog/ImageShack "You may revoke this permission at any time by requesting your content to be removed."

Regarding #3: The clause "for any purpose" is overbroad. If you wanted to sell people's personal photos for use as stock photography you would be able to. Contrast that with yfrog's "will not sell or distribute your content to third parties or affiliates without your permission" or Yahoo/Flickr's "the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available". Myspace's does not take the abiliy to sell or distribute outside of their site: "This limited license does not grant Myspace the right to sell or otherwise distribute your Content outside of the Myspace Services or Linked Services."

Regarding #4: "without limitation the right to use your name, likeness, voice or identity" You're claiming the right to use my identity?! That's really, really strange, and probably interfaces weirdly with some Identity Theft law somewhere in the US.

Thanks for taking the time to respond to me, and I hope you will take these concerns under consideration.

[0] http://www.facebook.com/legal/terms
[1] http://www.myspace.com/Help/Terms?pm_cmp=ed_footer
[2] http://yfrog.com/page/tos
[3] http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html
Their reply to my first email

Hello Tom

Thank you for writing in to us about the recent changes to our Terms of Use and Privacy Policy. The reason for these changes are to keep up with legal developments here in the United States, as well as to make sure that our policies cover all of the new features that we are planning to introduce to the CouchSurfing community.

In order to display your content on CouchSurfing, such as your profile picture or group posts, we need your permission to do so. When you upload content to CouchSurfing (like photos or group posts) you grant us the right to use it in various ways, such as linking to it and displaying it to other members.

When you send us a Submission such as a photo or a story, we might choose to write a blog post about it or post it to our Facebook, Twitter or other social media pages. If you send us a CouchSurfing design, we may make it into a product on the CS Shop. Please don't send us anything that you would prefer to keep private.

Hopefully this answers your question, but if not feel free to email us back at policies@couchsurfing.com.

Happy Surfing!

Update: I heard back from them over the weekend, and with their permission can post their response.
Their reply to my second email.

Hi Tom,

I'm sorry for the slow response. Hopefully I can address some of your concerns below, and I can certainly understand how the language in section 5.3 sounds over-broad. My responses are specific to your itemized questions.

1) You're right, we don't mention this specifically, although it is true that members do continue to own their own content (with the exception of things submitted directly to us as a Submission under Section 6.0). We originally included plain-english annotations with this new version of our Terms of Use which stated that explicitly, but our concern was that members would make decisions based on the annotations, which, being a summary, would have the potential to mislead them by not including the full information. In such a case, we might be considered liable for distributing bad information. My hope for CouchSurfing is that we can eventually move to completely plain-english policies.

2) Privacy settings are evolving on CouchSurfing. We are working on a complete overhaul to the website, which will include a lot of new features, and new privacy settings will go hand in hand with that. But because we don't know what exactly those new features or privacy settings will be, it is hard to reference them specifically.

3) The license under Section 5.3 gives us the ability to do things like display your name, pictures and other content on the website and through other CouchSurfing products as we develop them. However, it does not give us the ability to do whatever we want with your personal information. We cannot do anything with your information that is not clearly explained in our Privacy Policy. I would encourage you to take a look through that Policy here: http://couchsurfing.com/new_privacy and let me know if you have any further questions. Member privacy is very important to us.

4) This language is broad to allow us to develop new CouchSurfing products and features without having to rewrite the TOU at every turn. But please see above about how our Privacy Policy details exactly how and when we collect, use and share your information.

Hopefully this helps answer your questions, and thank you again for writing in. We truly do appreciate member feedback, and will take you suggestions into account as we continue to improve CouchSurfing.

Kind regards,

Legal Counsel
CouchSurfing International, Inc.

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