Evaluating Terms of Service

This section discusses and compares the key "terms of use" (or equivalent sections) you are likely to encounter when you are evaluating various online services. We've grouped these services into three general categories: social networking sites, blog-hosting services, and web-hosting services. Of course, some of these categories blend into each other, but you should be able to get a general idea of how the terms of service vary among the various types of sites and between individual sites themselves. Please keep in mind that a site's terms of use can -- and often do -- change frequently. This section is only a general guide. Be sure and read the actual terms of service before agreeing to use any of the services listed here.

Social Networking Sites

This section compares the terms of use for two of the most popular social networking sites, Facebook and MySpace. Facebook's terms are contained in its Terms of Use, Privacy Policy, its Content Code of Conduct, and its Copyright Policy. MySpace's terms are contained in its Terms of Use Agreement and Privacy Policy. Below are summaries of how the various sites' terms of use treat key aspects of your legal relationship with the site.

Age Minimum: Facebook requires its users to be 13 years old and, if they are under 18, to be in high school or college. MySpace requires its users to be 14 years old.

Content Limits: Facebook covers this subject in its Content Code of Conduct, MySpace in its Terms of Use Agreement. Both sites reserve the right to delete material and terminate accounts as they decide, and each also has many specific limits on content, involving material that is sexually explicit, violent, hateful, defamatory, encourages or instructs illegal activity. MySpace forbids you to post a photograph of another person without their consent, and to promote an illegal or unauthorized copy of another person's work. MySpace also forbids you from covering or obscuring banner adds on your or any other MySpace page.

Access to Your Personal Information: Each site has the relevant information in its privacy policy (here is Facebook's and here is MySpace's). Facebook, but not MySpace, is a licensee of the TRUSTe Privacy Program and participates in the Department of Commerce's Safe Harbor Privacy Framework. Both sites limit the situations in which they will share your personal information with other parties. Both of them will disclose information if it is required by law, and in situations involving a threat to someone's safety. Facebook also states that it may share information with other service providers to facilitate Facebook's services; in this situation, they "implement reasonable contractual and technical protections limiting the use of that information to the Facebook-specified purposes." In the event of a sale of the company, Facebook states that user information will still be covered by the Privacy Policy. MySpace does not make such a statement but does promise to notify users of any significant change in its privacy policy.

Ownership of Content: Both Facebook's and MySpace's terms of use explicitly state that they have no ownership of the content that their users post; however, both grant themselves license to use the user-posted content in particular ways. In both cases, the license is non-exclusive, worldwide, fully paid (MySpace's is also explicitly royalty-free), and includes a right to sublicense. MySpace's terms of use contain a useful explanation of what some of these terms mean. Facebook's terms of use also note that the license is irrevocable, perpetual, and transferable. (See the section on licensing for more information.) For both sites, what this basically means is that they can use, display, and distribute your content in almost any way they see fit. Facebook's terms also give it the right to translate the user content, prepare derivative works of it, or incorporate it into other works. Neither site limits the purposes for which it can use this license. In both cases, the license expires when the user removes their material from the site.

DMCA Policy: Facebook describes its procedures in its Copyright Policy, MySpace in its Terms of Use Agreement. Both describe DMCA notice procedures, but only Facebook describes counter-notice procedures. Both sites have policies of terminating the accounts of users who are repeat infringers (Facebook mentions this, not in its Copyright Policy, but in its Terms of Use).

Lawsuit-related Terms: Facebook's terms are governed by Delaware law, MySpace's by California law. Facebook's terms state that all disputes relating to the site (except for some involving intellectual property or injunctive relief) will be settled under arbitration; MySpace's terms state that either the user or MySpace may demand that any dispute be settled by arbitration. For any cases in court, Facebook's terms state that the case will be heard in the state or federal courts of California; MySpace's terms state that such cases will be heard in state or federal courts in Los Angeles specifically.

Blog-Hosting Sites

This section compares the terms of use for several of the most popular services that provide blog-hosting: Blogger, TypePad, and WordPress. Please note that each of the sites covered here is part of a larger company (in Blogger's case, Google; in TypePad's case, Six Apart; in WordPress's case, Automattic). Therefore, both companies' policies are relevant to the overall legal relationship between you and the blog-hosting site (For simplicity's sake, in this section "Blogger" will refer to both Blogger and Google; "TypePad" to both TypePad and Six Apart; and "WordPress" to both WordPress and Automattic.). For your reference, here are the key documents for each site:

Blogger: Blogger Terms of Service, Blogger Content Policy, Google Terms of Service, Google Privacy Policy, Google DMCA Policy.
TypePad: TypePad Terms of Services, Six Apart General Terms of Use, Six Apart Privacy Policy.

WordPress: WordPress Terms of Service, Automattic Privacy Policy, Automattic DMCA Policy.

Below are summaries of how the various sites' terms of use treat key aspects of your legal relationship with the site.

Age Minimum: Blogger requires that you are at least 13 years old. TypePad does not have an age minimum, but users under age 13 must have a parent or guardian review and complete the registration process. WordPress does not have an age minimum.

Content Limits: All three sites have similar rules forbidding content that is obscene, defamatory, hateful (particularly along racial or ethnic lines), violates someone else's privacy, or that you do not have the right to post. Google and TypePad, but not WordPress, forbid you to promote illegal activities. There are some small differences in how the sites describe these various limits, but all three sites reserve the right to remove content at their discretion. Therefore, if you are posting something that many people would find objectionable, even if it is not specifically forbidden in the terms of services, you should be aware that the hosting site might take down the content nonetheless. One difference between Blogger and the other sites is that it asks that explicit material be made private, and that Google may put such material behind an interstitial page warning other users.

Access to Your Personal Information: Each site has a privacy policy separate from its other terms (see Blogger's, TypePad's, and WordPress's). All three sites collect some personal data, and all agree not to disclose your data except in limited circumstances. For all three sites, they permit themselves to disclose your information when they are subject to valid legal process, when needed to enforce the company's terms or protect its rights, or to prevent some kind of harms to others. They also will share users' personal data as part of their business relationships. When they do this, Blogger and WordPress require the business partners to agree to their privacy policy or confidentiality agreements; TypePad gets these kind of agreements from their partner companies when it is "practical." WordPress's terms state that they will not sell or rent personally-identifying information to anyone. Blogger and TypePad's terms each have provisions describing what will happen if their company (including the data it has collected) is sold: Blogger will provide notice before such a transfer, and TypePad will keep its information subject to the same privacy policy, or to a new one that you will have the chance to consent to. Blogger has an opt-in consent for their sharing "sensitive information" (which includes confidential medical information, racial or ethnic origins, political or religious beliefs or sexuality and tied to personal information). Of the three sites, only Blogger is registered with the U.S. Department of Commerce's safe harbor program.

Ownership of Content: For all three sites, when you submit material to the site, you grant the site a worldwide, non-exclusive, royalty-free license (please see our section explaining transfers and licenses) to publish content you post on your blog for the purpose of promoting your content and/or the site's services. TypePad's and WordPress's licenses also give them the right to modify or adapt the content as well. TypePad's license terminates when your blog account is terminated; WordPress makes reasonable efforts, when you delete content, to remove it from the website; Blogger's terms give no indication as to when their license expires. Blogger's and TypePad's terms explicitly say that they assert no ownership claim over the content you have submitted; WordPress's terms do not say this.

DMCA Policy: Blogger and WordPress each have their DMCA policy in a special section (see Blogger's and WordPress's); for TypePad it is within Six Apart's General Terms of Use. All three companies may take down material in response to a notice of copyright infringement, and each will make a good-faith effort to notify the party whose allegedly-infringing content was taken down. All three declare that they might terminate the accounts of repeat copyright infringers. All three give instructions as to how to file a notice of infringement; Blogger and TypePad (but not WordPress) describe how to file a counter-notification. Unlike the other two sites, Blogger states that it may forward the notices of infringement it receives to Chilling Effects, a public interest group that protects online speech, for publication.

Lawsuit-related Terms: All three of the sites' terms of use are governed under California law, and all provide that any lawsuits arising out of your relationship with the company will be heard in certain courts in the San Francisco Bay Area (for TypePad and WordPress, San Francisco; for Blogger, Santa Clara County). WordPress, unlike the other two sites, provides that most claims arising out of the terms and conditions will be settled through arbitration.

Website-Hosting Services

There are almost as many styles of website hosting service as there are websites on the Internet. This section discusses three examples and how the various sites' terms of use treat key aspects of your legal relationship with the service provider. Go Daddy and Network Solutions are major commercial hosting services, while Project DoD is a “member supported non profit collective intent upon helping the public gain access to tools that are needed for the dissemination of information.” Go Daddy’s terms and policies include Universal Terms of Service and a Hosting Service Agreement, Network Solutions’s extensive policies are centrally indexed as part of its Service Agreement, and Project DoD’s terms are located on the main hosting page.

Age Minimum: Go Daddy’s age minimum is 18; Project DoD’s terms set no minimum. Network Solutions requires that registrants be 13 years old with parental permission unless they are “of legal age to enter into this agreement.”

Content Limits: Hosting companies tend to be aggressive in their content prohibitions; all three providers retain the right to remove content at their discretion. Project DoD’s terms are the least explicitly restrictive regarding specific types of content: “porn,” “hate sites,” “content that is targeted at offending any ethnic group,” “threaten[ing] or intimidat[ing] anyone,” “any activity which is likely to cause” harm to minors, “any action which encourages or consists of any threat of harm of any kind to any person or property,” and “inappropriate communication” on newsgroups, mailing lists, etc. are prohibited. Go Daddy’s terms prohibit “any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious” and, if you use the free ad-supported option, “content intended to advocate or advance computer hacking or cracking, gambling, illegal activity, drug paraphernalia, hate, violence or racial or ethnic intolerance.” Network Solutions' Acceptable Use Policy contains the broadest restrictions of the three, barring “material that is obscene, defamatory, libelous, unlawful, harassing, abusive, threatening, harmful, vulgar, constitutes an illegal threat, violates export control laws, hate propaganda, fraudulent material or fraudulent activity, invasive of privacy or publicity rights, profane, indecent or otherwise objectionable material of any kind or nature.” In addition, Network Solutions prohibits “material that encourages conduct that could constitute a criminal offense, gives rise to civil liability,” or holds “Network Solutions (including its affiliates) or their employees or shareholders up to public scorn, ridicule, or defamation.” Several of the Network Solutions provisions may be of particular concern to journalists.

Access to Your Personal Information: Project DoD’s site does not offer a privacy policy, but does require that users of its hosting services obtain express written consent of any person from whom the user collects personal information. Go Daddy and Network Solutions maintain privacy policies separate from their other terms (see Go Daddy’s and Network Solutions’s). Both Go Daddy and Network Solutions agree not to disclose your personal information except in limited circumstances. For example, they permit themselves to disclose your information when they are subject to valid legal process or as required to provide you with the services you request. Go Daddy indicates that its business partners may require that it share your personal information but that it will not do so without your explicit permission, and provides that when sending a “co-branded” email solicitation it will make clear whether Go Daddy’s own privacy policy or that of its business partner is applicable. Network Solutions does not offer similar assurances. Go Daddy provides five methods of altering your personal information or opting out of solicitations, including telephone, while Network Solutions provides only an online system. Both providers will post changes to their privacy policies 30 days in advance of the changes taking effect, but only Network Solutions invites you to notify them by email if you wish to opt out of a future change (language in the Service Agreement itself, however, indicates that the alternative to agreeing to such changes is to terminate the agreement). If you terminate your account, Go Daddy “deactivates” it but retains it “in order to resolve disputes or enforce” agreements. Go Daddy is a licensee of the TRUSTe Privacy Program and is a member of the Anti-Phishing Working Group. Both Go Daddy and Network Solutions sell “private domain name registration” that prevents your personal contact information from being accessible via the WHOIS system.

Ownership of Content: Network Solutions retains only a license to cache your site. Go Daddy’s agreement appears to imply that you will be transferring the copyright in your content to Go Daddy when you use its services, by stating that "Go Daddy grants to You, and You accept from Go Daddy, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your website content in connection with Go Daddy's performance or enforcement of this Agreement." We couldn't find any other language in Go Daddy's terms of service that explains why you would need a license from Go Daddy to use your own content. We suggest that you seek clarification from Go Daddy before agreeing to this strange licensing provision in their terms of service. Project DoD’s terms of service make no mention of it acquiring any rights in your content.

DMCA Policy: Project DoD’s terms require that you agree not to infringe copyright, trademark, patent, trade secret, or other proprietary rights but do not elaborate on the service’s DMCA policy. Go Daddy has a dedicated Trademark and/or Copyright Infringement Policy providing detailed instructions on submission of violation claims, while Network Solutions provides that information on a general Legal Notice page. Go Daddy and Network Solutions both indicate that they will take down material in response to a notice of copyright infringement; Go Daddy also indicates that it will take reasonable steps to notify the party whose allegedly-infringing content was taken down, including providing a copy of the complaint. Go Daddy indicates that it may terminate the account of repeat infringers and provides detailed instructions as to how to file a counter-notification.

Lawsuit-related Terms: Project DoD’s terms set no particular conditions relating to lawsuits. Both Go Daddy and Network Solutions require that you indemnify them against any liability resulting from your use of their services; both services retain the right to employ their own counsel, but Network Solutions further specifies that you remain solely responsible for their defense and must obtain their written consent to a settlement. In addition, you must agree to notify Go Daddy of a pending suit claiming you have violated a third party’s intellectual property rights. Both companies require that you confirm your indemnification in case of a lawsuit; failure to do so may be considered a breach of your terms of service. Go Daddy specifies that the agreement is governed by Arizona law and that any action arising from the agreement will be brought in Maricoa County, while Network Solutions specifies that the laws of Virginia govern the agreement and that suits under the agreement will be brought in the United States District Court in Alexandria or, if the federal courts have no jurisdiction, the state court in Fairfax County. Both Go Daddy and Network Solutions require that you waive your right to trial by jury, but neither requires arbitration.

Service Availability: Project DoD’s terms make no mention of service availability, and Network Solutions emphatically disclaims any promises on the topic. Go Daddy, on the other hand, indicates that – subject to various rather broad conditions – it “shall attempt to provide” service at all times and that if it fails – by its own calculations – to provide service for 99.9% of a given month, you can request a credit of 5% of your monthly fee.