“I AGREE”: Analysis of Click-Wrap Agreements on Social Media Platforms

Posted on July 23, 2020

Authored by Manika Dayal

Source: chess-events.org

The evident and rapid popularization of social media platforms all over the world arguably functions under the pretext of simplicity. A simple means of connecting communities, cultures, people, traditions, trends and ideologies. In theory the intent behind social media platforms seems almost too idealistic to accomplish. Well it is, because akin to almost everything in the world, with the good comes the fine print. Social media platforms, through the advent of time, have become a multi-billion-dollar industry which inevitably grows by the second. This consequently raises the stakes for all the stakeholders involved in this process (i.e., the investors, operators/owners and the creative sector). Further, original content that binds all the stakeholders, has inevitably become extremely vulnerable to increased intellectual property rights violation. As a result of lack of concrete precedents in this field and complaisant enforcement, the rules, regulations, or ‘Terms of Service’ of various platforms demand a closer look.

From the point of view of an average user, User Generated Content Agreements (“UGC Agreements”) are extremely important. There are three aspects of the UGC agreements that are raised for consideration. First, the rights vested in the user when he/she reproduces their original content on the platform. Secondly, the storage of the user generated content. Thirdly, rights vested in the online platform for the purpose of reproducing the user generated content.

For the purpose of this article we would be analyzing the Terms of Service in the context of user generated content of three popular social media platforms that are YouTube, Instagram and TikTok.

YouTube

In YouTube’s Terms of Services, UGC related guidelines can be traced to their ‘Your Content and Conduct’ subheading which elucidates upon the rights vested in the owner and the content creator. It explicitly states that sole ownership rights of the content are vested with the creator. However, when the creator uploads his/her content on the platform by clicking on the click-wrap agreement they license their content to YouTube which grants them:

“a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors’ and Affiliates’) business, including for the purpose of promoting and redistributing part or all of the Service.”

This license along with its above-mentioned correlated rights is also extended to other users of their service whilst barring the enjoyment and enforcement of these rights outside of the said service. One such example of affirmative interpretation of click-wrap copyright license of users’ content to social media platforms is in the case of Agence France-Presse (AFP) v. Morel where the United States district judge citing the Terms of Service of Twitter held that “The Twitter TOS (terms of service) provides that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners”.

YouTube, however, can be allotted the status of an intermediary and consequently cannot be held liable for third party content i.e. user generated content in accordance with several case law both national and international such as Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and Elsevier Inc. v Cyando AG[1], Shreya Singhal Vs. UOI[2], Myspace v. Super Cassettes Industries Ltd[3] and Christian Louboutin SAS v. Nakul Bajaj as it merely plays the part of a facilitator rather than an “active role”.

The primary issue with YouTube has been the excessive copyright violations on their platform, which is why as of 9th July, 2019, the platform introduced a new version of their content protection policies which entailed a much more comprehensive uploading and takedown procedure. The new procedure implements a content identification tool called ‘Content ID’ which requires the copyright holders to provide YouTube with exact time stamps for all new content identification claims. YouTube’s policy describes this tool as a “digital fingerprinting system that allows rights holders to upload content that they have exclusive rights to as reference files, and then scans videos uploaded to YouTube for matches of that content. When a user uploads content, Content ID scans against the database for matching videos”.

The object that it seeks to achieve is for the copyright holders to identify and locate the exact portion of time for which their video is under a particular claim. However, this process is only applicable for manual individual copyright claims rather than extending it to their AI based algorithm put in place for flagging infringing content.

Further, another point of contention is the storage of the user generated content after the deletion of an account. The Terms of Service state that the content would be stored in the platform’s database for the time period of the account itself, and once the account is deleted, YouTube would automatically initiate their removal process. However, a sentence in that particular clause that requires deliberation is the following:

“The licenses granted by you continue for a commercially reasonable period of time after you remove or delete your Content from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted.”

A literal interpretation of this sentence would indicate that YouTube as a data controller will indefinitely be in possession of user generated content post deletion/removal of a particular account. This can be deemed dangerous in a plethora of situations, a more likely instance of say hacking into their database and servers.

Instagram

Instagram is another widely used social media application which solely functions on user generated content. It’s Terms of Service in comparison has proved to be one of the most simply worded Terms of Service, which consequently makes it easier for a person not having a legal background to comprehend the same. Similar to YouTube’s Terms of Service, Instagram in its capacity of a service provider does not claim ownership of the user generated content. “We do not claim ownership of your content, but you grant us a license to use it. Nothing is changing about your rights in your content. We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it” The only debatable aspect of this clause may be the reproduction of derivative works from the user generated content, however a devil’s advocate argument would be that the same action is in accordance with their Terms of Service and in abidance of users’ ‘privacy and application settings’ which would be deemed to be implied consent.

With regard to deletion of the account and consequent storage of the user generated content, the Terms of Service state:

“Content you delete may persist for a limited period of time in backup copies and will still be visible where others have shared it.”

It is plausible to assume that shared user content would not be removed in the interest of other users and their rights. However, the estimated time for user’s own content is vaguely worded and fails to provide with a specific period for the said deletion.

TikTok

TikTok, in comparison to other similar apps which solely function on user generated content, arguably maintains an exceedingly arbitrary and service provider oriented Terms of Service. In the above-mentioned Terms of Services that have been discussed, they acknowledged the implied presence of moral rights as part of the unreduced ownership rights. However, on the contrary, by agreeing to Tiktok’s clickbait agreement, a user consents to the following:

“By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Services.”

Literal interpretation of this waiver clause translates into surrendering of all the rights vested in the user generated content and transforms it into a property of the platform. The stakes are further raised as unlike the other platforms discussed above because when a user records a live audio to use as background sound for their content using TikTok’s sound recording feature, TikTok also obtains rights to such voiceover to use it in forms other than that user’s own content. This process makes an original composition authored by the user also a property of the platform, with no recourse available for the user.

It is also interesting to note that this feature in itself endangers the platform’s ‘intermediary’ status as it possesses overreaching powers that a facilitator normally wouldn’t. Further, it can be deemed that the platform plays an ‘active role’ with regard to user generated content especially when compared the interface of the application with the definition of an intermediary in accordance with Section 2 (1) of the Information Technology Act, 2000. This argument is reaffirmed in an alarming sentence mentioned below the paragraph quoted above which states: “We, or authorised third parties, reserve the right to cut, crop, edit or refuse to publish, your content at our or their sole discretion.”

With this the users award the platform AND third parties with arbitrary power and discretion. The Terms of Service of this platform also does not mention the aftermath of the deletion of an account with regard to the user generated content uploaded on the platform. This is evidently contrary to its competitors who have specifically provided a plan of action after a particular account has been requested for removal/deletion. As is further provided in their Terms of Service:

“Tiktok may enter into mutual contractual agreement with some creators, where TikTok may enjoy certain exclusivity rights over the content of these creators. In this regard, TikTok has undertaken legal action as part of its commitment to protect its users from copyright infringement.”

Further, the platform who is ironically functioning on user generated content, conveniently absolves itself of reverting to any form of feedback and concerns posted on the platform in the interest of the user community:

“we have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason”

The exploitation is further not limited to user generated content, but extends to the feedback posted by user as well:

“You irrevocably grant us perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.”

Apart from this TikTok has been the centre of numerous data privacy concerns which led to its consequent ban in India. This also makes compliance with European Union’s General Data Protection Regulations difficult as any data controller is required to specify the nature, extent, purpose, and duration of the data collected or processed by them. Additionally, it has been noted that an online platform goes beyond the role of an intermediary when it modifies or re-transmits user generated content[4]. Thus, TikTok’s overarching Terms of Service might disallow the platform to rely on the safe harbour protection granted to intermediaries.

Conclusion

With the fast growing age of social media, the scale of responsibility of protecting consumer data should ideally be balanced. With the large influx of date on these platforms, the user in itself should entail a certain degree to responsibility and cautiousness as to the content that he/she choose to upload on these platforms since data, being an intangible yet precious commodity, is vulnerable for exploitation at every step.

[1] C-682/18 Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and C-683/18 Elsevier Inc. v Cyando AG

[2] Shreya Singhal vs. Union of India AIR 2015 SC 1523. [ Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.]

[3] Myspace v. Super Cassettes Industries Ltd. MIPR2 on (2) 303 [Under the DMCA, a “red flag” test, which has both subjective and objective elements. In determining whether the service provider was aware of a red flag, the subjective test of whether under the given facts and circumstances a reasonable observer could discern infringement, however such determination should be arrived at by using an objective standard.]

[4] C-682/18 Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and C-683/18 Elsevier Inc. v Cyando AG. The operative part can be found in paragraph 75 wherein it is stated that:

“On the other hand, a service provider goes beyond the role of an intermediary where it intervenes actively in the ‘communication to the public’ of works. That is the case if the provider selects the content transmitted, determines it in some other way or presents it to the public in such a way that it appears to be its own. In those circumstances, the provider carries out the ‘communication’, together with the third party that initially provided the content. This is also the case if that same provider, on its own initiative, makes further use of that ‘communication’ by retransmitting it to a ‘new public’ or via a ‘different technical means’.”