Will Tumblr's New Terms Of Service Finally Lead To The De-Stupidifying Of Terms Of Service?

from the that-would-be-nice dept

Late last week there was some buzzing over Tumblr's new Terms of Service, which some noted had some amusingly plain language explanations in them, resulting in a bit of news coverage. Having gone through the process of creating terms of service with lawyers before, I'm somewhat jaded on the subject -- even though I thought we had pretty good lawyers who worked with us. The problem, however, is that terms of service, like contracts, are often defined by very specific things that have gone wrong in the past, and the lawyers make their money in trying to keep such things from going wrong in the future. Their job isn't to make your terms fun and friendly, but rather to protect you from getting into legal trouble. We had even suggested doing a "human readable" terms of service to go with the legalese and were warned not to do so -- as it could create problems later on if the human readable section and the legal section were somehow determined to disagree.

Tumblr has apparently decided to take that chance, and some of the quotes that are getting attention are actually from those "human readable" explanations. Such as this little tidbit:
You have to be at least 13 years old to use Tumblr. We're serious: it's a hard rule, based on U.S. federal and state legislation, even if you're 12.9 years old. If you're younger than 13, don't use Tumblr. Ask your parents for an Xbox or try books.
Thing is, that's not really in the "terms" itself, but in a call out explaining the actual terms, which are a bit more legal (though really not too bad). There are also other fun tidbits in the human readable explanations, like:
Don't do bad things to Tumblr or other users. Some particularly egregious examples of automated "bad things" are listed in this section.
One other nice thing in the human readable section deals with the part of most services terms that confuses the hell out of people and often leads to unnecessary freakouts is the license to the site, which is basically just saying you can't upload stuff to a site and then sue them for displaying it. People often misinterpret this clause such that they think it means you're giving the site your intellectual property rights and/or that they're going to go off and sell you stuff. Tumblr directly addresses this by first making it clear you retain rights to whatever, but then also saying:
When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you'd expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc.). We never want to do anything with your content that surprises you.

Something else worth noting: Countless Tumblr blogs have gone on to spawn books, films, albums, brands, and more. We're thrilled to offer our support as a platform for our creators, and we'd never claim to be entitled to royalties or reimbursement for the success of what you've created. It's your work, and we're proud to be a part (however small) of what you accomplish.
It's definitely nice to explain this so clearly, since it's clearly a point where some people go completely crazy in misunderstanding what's being said.

Also, I note, with interest, that it appears that Tumblr has also removed the indemnification clause that is so standard in pretty much any terms of service. I think this is a good move. These things have become totally standard, but I'm curious if anyone can name a single time that an internet service provider invoked the indemnity clause when getting sued? What service provider would actually do that? It would almost certainly turn against them and freak out other users.

The press coverage is also highlighting a few other funny clauses... but those aren't actually in the terms of service, but rather the "community guidelines" which don't need to be nearly as legally relevant. I'll point out a few, but note that funny/human readable community guidelines really aren't that crazy an idea, but Tumblr's guidelines definitely are pretty good. A few amusing tidbits:
  • Uploading Sexually Explicit Video. You can embed anything as long as it follows the other guidelines on this page. But please don't use Tumblr's Upload Video feature to host any sexually explicit videos. We're not in the business of profiting from adult-oriented videos and hosting this stuff is fucking expensive. You can use services like xHamster to host those instead.
  • Impersonation, Stalking, or Harassment. Treat the community the way you'd like to be treated. Don't attempt to circumvent the Block feature. If you want to parody or ridicule a public figure (and who doesn't?), don't try to trick readers into thinking you are actually that public figure.
  • Don't post content that violates anyone's privacy, including personally identifying or confidential information like credit card numbers, social security numbers, unlisted contact information, or private photos of your ex's junk (no matter how attractive).
Honestly, the coolest thing about Tumblr's terms of service is the fact that they've put it on github so you can really see the changes they made very easily, as the system highlights the difference, even for very minor changes. This is a really good idea, and one that it would be nice if other sites followed suit on.

That said, after seeing a couple stories about the new terms before reading them, I expected the terms to be a lot more human readable than they really were. This, once again, likely highlights my experience with lawyers five or so years ago when I went through this process. There really is only so much you can do. Still, this leads to two thoughts. First, just the fact that Tumblr is getting some attention for this makes me wonder if others will now strive for similar (or, better yet, great) simplicity in their terms and policies. That would be a nice and beneficial trend.

The second though is one I've brought up in the past as well: all this really does is highlight just how useless terms of service are in general. Even in a case like this where they're "more readable" most people aren't actually reading them or caring about them. And yet, for legal reasons, every site feels the need to have one (same with privacy policies). All these things really are designed to do is to provide legal coverage, but they do absolutely nothing to actually benefit users. When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources.

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  1. icon
    Vidiot (profile), 26 Mar 2012 @ 8:37am

    My favorite plain-language EULA

    I'd always heard that plain-language notifications and agreements couldn't possibly be binding, and that they'd fail every test. But when the meaning is so incredibly transparent, what is there to contest?

    This EULA only pops up during OmniGraffle's installation process, but I grabbed a screen cap:

    http://twitpic.com/91n1pz

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