So you’re starting an online business
Three “stories”, if you like, have prompted me to write this post:
- a story about some client feedback I had a while ago; and
The Pinterest story
“By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.”
On the “right to sell content” point, the email said:
“Our original Terms stated that by posting content to Pinterest you grant Pinterest the right … to sell your content. Selling was never our intention and we removed from our updated Terms.”
(The full text of the email has been reproduced online.)
At the time, the references to “standard set of terms” and selling never having been Pinterest’s intention made me wonder about what went into the drafting of the terms. The drafting was belts and braces wording commonly seen in online terms which, I suspect but don’t know, was either drafted to protect Pinterest’s interests and potential future interests to the greatest extent possible or was a template provision used in the terms without analysis of how it might affect users’ perception of the service. But here’s the thing: whilst we need to be careful about judging with the benefit of hindsight, including a right to sell members’ copyright content was probably never going to be pretty because with potentially popular platforms like Pinterest you’re always likely to find a small number of users that comb through the terms and report publicly on things they consider to be extreme. That sort of thing happens on government websites too: include something that people find inappropriate and don’t be surprised if you receive a complaint.
My client feedback story
The very same day (evening in fact) I rewrote it from scratch (for no extra charge). It wasn’t difficult, as all the legal analysis was there, but I managed to shorten it considerably, remove some terminology that didn’t really need to be there and made all the points that needed to be made but without the same amount of detail. The end result was punchier, friendlier and easier to read. What was it again that Benjamin Franklin is said to have said?
“I have already made this paper too long, for which I must crave pardon, not having now time to make it shorter.”
The Envato Studio terms story
In a previous post, I spoke positively about the drafting of Envato Studio’s legal terms, in the context of reviewing the intellectual property terms of four WordPress and other ‘job shops’. I’d read the Envato Studio terms after analysing and writing about the terms of the other three services. The clarity I saw in the Envato terms, in terms of their language, their coverage of the important points, their structure and their visual layout was refreshing. I even went so far as to assert that whoever drafted the terms was worth every cent Envato was paying them.
What these stories tell us
- Clients’ interests are not necessarily best served by including every possible protection, benefit or interest. What goes in and what stays out needs to be discussed but it’s vital to take into account the impact that certain inclusions or exclusions may have on customers’ perceptions of the business and the respect (or otherwise) that the service provider has for their interests. This can be a tricky balancing act at times but getting it wrong runs the risks of inciting adverse publicity, losing customers and adversely affecting the service provider’s revenue.
- If you get the terms ‘wrong’ and there’s a resulting outcry, fixing them and being human about it – as Pinterest did – is probably a good idea.
- Drafting approachable, plain English and user-friendly terms is both a skill and an art. The lawyer needs to make sure that essential points are covered while also sounding as human as possible and not freaking out the client’s customers. This may require refinement upon refinement but is well worth it (and you’ll feel better when you’ve done it).
(Featured image: Igor Stevanovic / Bigstock.com)