Marginal Utility

by Tom Bozzo

...nothing that I can think of, but the scourge of "browse-wrap licenses" — the legalese behind the "Terms and Conditions" links you see on many websites — has come to the blogiverse. Gary Farber notes that the TPMCafe terms of service include the following terms:

TPM does not claim ownership of the Content you submit or make available for inclusion on TPMCafe. The Content is the property of the author of such Content. You agree to grant TPM a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer, and sell such Content in any format now known or hereafter created, and to use your name and other identifying information you provide in connection with that Content. You also permit any visitor or member of TPMCafe to use such Content for personal use as described above.

And, furthermore, the terms require that quotes of TPMCafe comment be accompanied with the notice:

Used with permission from TPMCafe.com, a service of TPM Media LLC.

Which I suppose I would have because my purpose is noncommercial and my audience is a "limited number of individuals" (as is anyone's, actually, at least in the sense that the Sonny Bono Gift To Disney And Other Big Content Creators Act respects the authority granted to Congress to allow copyrights of "limited Times").

My admittedly non-lawyer understanding is that that grants of "perpetual and irrevocable" (belt and suspenders, eh?) licenses are not unusual in intellectual property transactions. For blog comments, they even makes a degree of sense as expiry or revocation of the blogger's license to reproduce or excerpt a comment unmodified could in theory make it impractical or impossible to do useful bloggy things like serve archived posts with the original comment threads intact, or quote from a comment in another post. Where the TPMCafe TOS go overboard, for my two cents, is in the asserted grant of rights to modify and particularly to resell, royalty-free, notwithstanding the present market reality that the value of blog comments is still mostly psychological value to the blog author.

Actually, TPMCafe's license terms weren't the most outrageous I found in today's blog reading. I paid a brief visit to Brad Setser's blog, recently moved to the RGE Global Monitor site (linked, along with Nouriel Roubini's, in the sidebar), and saw its TOS via the click-wrap license for Setser's comments function. These just made me laugh, and I'm sorry to say not with Roubini Global Economics LLC.

First off, you can't enforce a contract with someone not legally capable of assenting to the terms, even by what passes for standards in the relevant case law. The solution?

1. Eligibility.

You must be 18 years of age or older to visit or use Rgemonitor.com in any manner. By visiting Rgemonitor.com or accepting these Terms of Use, You represent and warrant to the Company that You are 18 years of age or older, and that You have the right, authority and capacity to agree to and abide by these Terms of Use.

It doesn't look like Roubini teaches undergrads, but nevertheless a youngish NYU freshperson in an introductory macro class would violate the Terms by reading the RGE blogs.

At least the hypothetical NYU frosh would be in compliance with the restrictions to keep the RGE blogs on-topic:

RGE Web Logs and the Rgemonitor.com Site may be used only for lawful purposes by individuals seeking to view and post commentary related to Global Macro Economics and Geostrategic information.

So, I could (and probably did) violate the Terms of Use by visiting with the intent to see if there was any microeconomic content posted there. I'll leave it to the lawyers whether Setser himself violated the TOU with the post "Back to Blogging," whose nexus to "Geostrategic information" is thin to say the least.

And, if you think TPM Cafe is being tough in requiring a rights notice with quotations of TPMCafe content, here's RGE's restriction:

The use of the RGE Content on any other Web site or in a networked computer environment for any purpose is prohibited.

So forget about quoting them, or be prepared to mount a "fair use" defense.

If I understand what sources say about the case law, and again IANAL, browse-wrap licenses can be shaky, but click-wrap ones such as you notionally assent to by registering at TPM Cafe or commenting at Setser's blog are generally enforceable, though individual overreaching terms may not be. (The licenses typically provide that waiver or unenforceability of any individual term or terms will not invalidate the entire license.)

I think Farber's bottom line is right — presumably neither RGE nor TPMCafe intend to launch a wave of litigation over the blogiverse expanding in its usual ways, but you might nevertheless think twice before "engaging in discourse on these terms."

For now, I'm noting in the sidebar that Roubini and Setser are rated X. Young international economics and macroeconomics people visit at your own risk.

Additional thought: Part of what makes these terms of use interesting is that they put in explicit contractual terms a variety of implicit transactions that are more-or-less fundamental to the blogging process and conducted with such regularity that probably few people are conscious of them. This is perhaps a natural consequence of the increasing commercialism of portions of the blogiverse, and serves in part to remove the illusion that blogging is a free-for-all moderated by the Law of the Schoolyard. (Like Jeremy, I'll emphasize that this is a big schoolyard, and none of the above should be taken as disapproval of anyone's blogging approach so much as of some overlawyering.)