A Call for Greater User Protection in Internet User Agreements Commentary
A Call for Greater User Protection in Internet User Agreements
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JURIST Guest Columnist Jared Mullowney, Texas Tech University School of Law Class of 2013, is a member of the Intellectual Property Student Association. He argues in favor of eliminating clauses from Internet user agreements that allow websites to retain ownership of all user generated content…


Could an infantry of modern day Marines destroy the entire Roman Empire as it stood during the reign of Augustus? This was a question posted by a user named “The_Quiet_Earth” on the social media website Reddit.com. James Erwin gave the answer in a pitch that landed him a movie deal with Warner Bros., which led to an interesting legal question: who owns the copyright to the story?

An idea cannot be copyrighted. The expression of an idea, however, can be. Where is the line between idea and expression drawn? Does James Erwin own the copyright to this story because he originally expressed in detail The_Quiet_Earth’s idea, and this is what ultimately led to the deal with Warner Bros.? Reddit’s user agreement includes the following clause:

[Y]ou agree that by posting messages, uploading files … or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.

This language suggests that anyone who posts anything on Reddit will lose the ability to later exclusively license that material to someone else, such as Warner Bros. Even though commentators are divided as to whom owns the copyright to the story, the title of which is Rome, Sweet Rome, there is little discussion over the repercussions of having such a clause in the user agreement in the first place.

One of the greatest reasons that the Copyright Clause, Article 1, Section 8, Clause 8 of the US Constitution, recognizes copyright protection is to encourage creative thinking. A clause like the one found in Reddit’s user agreement, however, inhibits creative thinking and expression. Unfortunately, these clauses exist on numerous websites, including photography websites and social media websites like Twitter.

So how does this chill creative thinking? With the creation of the Internet, the exchange of ideas is easier, more far-reaching and faster than ever. Such a flow of ideas and the access to such material, has the ability to lead to an abundance of new ideas and novel forms of creative expression. Reddit has a very active and large community that posts unique questions and answers nearly daily. While the Internet has been a wonderful platform for creativity, clauses like the one found in Reddit’s user agreement only serve to stifle that creativity. Anyone who knows that such a clause exists in a user agreement will likely be more cautious about what they post. For example, think of how this impacts a photographer. Photographers, no doubt, would like to use the Internet to advertise their work, but if posting their photos on a popular photobook website would prevent them from granting an exclusive license to anyone else, then they are left with less desirable, less far-reaching and possibly more expensive means of advertising and publishing their work. Ultimately, such an environment is likely to deter photographers from sharing their photographs. The situation is similar on websites like Reddit. If people know that what they post will cease to be solely their intellectual property, or that their ownership rights will be significantly diluted, then they may not post at all. Therefore, the expression of a number of ideas may never come to fruition.

This chills creativity even more by leaving users unsure of whether a website will or will not claim ownership. Returning to the Reddit example, while such a scenario is not common, who knows when Condé Nast, the owner of Reddit, will step in again and try to claim part-ownership of posted material? The problem is that users do not know, and because of this, they might be more cautious about posting, or refrain from posting all together. This too leads to an environment in which creative ideas are less likely to be developed and explored.

Just how far do these clauses go? Popular online video games, such as World of Warcraft, owned by a company named Blizzard Entertainment, also do not give ownership of user generated intellectual property to its subscribers. While this makes sense because Blizzard Entertainment continues to own the copyrights to the World of Warcraft characters, items and monsters, what about a story that a player writes based on the character she has created in the game? What if that player has used the same character for years and, throughout her playing experience, she has come up with a unique history for her character and wants to write a book about it? Because she is writing about something based on intellectual property she does not own, does that mean that Blizzard Entertainment would have an interest in the copyright to her book? What if the story she writes is separate from World of Warcraft except for the character?

So, what should we do with these clauses in Internet user agreement? In truth, to preserve and encourage a climate of creativity, they should be eliminated entirely. First, websites that include these clauses rarely exercise the rights granted to them. Some might say that this is a reason to ignore the clauses and allow them to remain in user agreements, but what about the case of James Erwin? He is one of the few people who have been lucky enough to be approached by a company, hoping to make something more out of his expression rooted in another’s idea. If companies exercise this right just one time out of a thousand, then the clause should not be there at all. Second, users who are posting content should not have to worry about whether the material they post will or will not be claimed as partly-owned by a website. This is true for social media websites, and especially true for photography websites, where users express ideas in a plethora of creative ways.

If these clauses are not to be eliminated completely, then perhaps some limitations should be added. Instead of being permanent, a solution could be for the clause to only be in place for a limited duration of time. If the rights granted in the clause are not enforced within a certain amount of time, then complete ownership could revert back to the creator, and the website would no longer retain ownership of or license to the work. Another alternative is that these clauses could be modified in a way that would allow the author to grant an exclusive license to a purchaser, if he or she wishes, thereby revoking the license to the website. Neither of these solutions are ideal, however, because the website would still temporarily have the right to commercially license posted material. Accordingly, to encourage the free flow of ideas, the best solution would be to eliminate these clauses altogether, leaving ownership, distribution and licensing rights to the creator. The Internet can be a truly wonderful place, where some of the most creative ideas find expression. This creative expression should not be stifled by a single paragraph buried deep in a user agreement.

Jared Mullowney is a second-year law student at Texas Tech University School of Law. He is the national champion of the 2011-2012 ABA Arbitration Competition, and a member of the Intellectual Property Student Association.

Suggested citation: Jared Mullowney, A Call for Greater User Protection in Internet User Agreements, JURIST – Dateline, Feb. 21, 2012, http://jurist.org/dateline/2012/02/jared-mullowney-copyright.php.


This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org


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