Here’s yet another installment in the ongoing saga of AOL’s delusions of grandeur. I just posted this to my del.icio.us page of recommended reading, but this one is so ludricrous it warrants a special mention here.
Apparently, at some point AOL quietly unveiled new terms of service for its popular AOL Instant Messenger (AIM) chat service. Basically, AOL is claiming unlimited rights to all content and ideas transmitted via AIM. That’s right if, say, you use AIM to discuss a new idea for a business, book, deal, etc., AOL is claiming the right to use, publish, or sell your ideas or plans without notifying or compensating you. At least, the way the AIM TOS is currently written leaves the door open for such abuses.
I wish this was a joke. It’s not. Whether or not such unabashed greed and thievery is legally enforceable (and I have serious doubts about that), it’s certainly insulting enough to warrant abandoning AIM immediately and permanently. I don’t use AIM much, but I have just uninstalled AIM from my computer. I recommend that you do so too, and tell all the AIM users you know about this.
No, I don’t think this is an overreaction. Here’s why…
I don’t know exactly when the offensive addition to the AIM TOS was added, but it applies only to users who downloaded the free AIM software on or after Feb. 5, 2004.
Here’s a direct quote from the AIM TOS:
“Although you or the owner of the Content retain ownership of all right, title and interest in Content that you post to any AIM Product, AOL owns all right, title and interest in any compilation, collective work or other derivative work created by AOL using or incorporating this Content.
In addition, by posting Content on an AIM Product, you grant AOL, its parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium. You waive any right to privacy. You waive any right to inspect or approve uses of the Content or to be compensated for any such uses.”
AOL’S BACKPEDALING UNCONVINCING
Read that comment yourself to see what Weinstein says. I’m thoroughly unimpressed. And over on Slashdot, they’re generally not too impressed either.
As far as I can tell, the AIM TOS document does indeed leave the door wide open for indiscriminate content grabs. It doesn’t matter whether AOL now claims that’s not what they meant, or that’s not what they would do. What matters is what options that document, as written, leaves open.
Not only that, the choice of legal language in the AIM TOS was particularly blunt and provocative. As far as I’m concerned, that demonstrates a very, very bad attitude toward content rights which is even more troublesome than this particular document.
AOL can backpedal all they want. However, until they change the language in that document to clearly and specifically protect AIM user’s content rights and privacy, I doubt they’ll regain public confidence.
AOL walked into this one with their eyes open. They should have expected this reaction.
LOTS OF PEOPLE USE AIM FOR WORK
At least two clients of mine rely on AIM as a key communication tool within their businesses. They often discuss sensitive and proprietary topics via AIM, such as upcoming projects or contracts. Things that they definitely would not want AOL claiming rights to, acting on independently, or selling.
A Mar. 12 eWeek article by Ryan Naraine on the AIM TOS observed:
“The [TOS] changes could have serious ramifications for AOL’s AIM@Work service which is being marketed to businesses. AIM@Work offers things like Identity Services to allow the use of corporate e-mail address as AOL screen names. It also offers premium services like voice conferencing and Web meetings.”
When I read that, I wondered if perhaps the AIM@Work service might have a less offensive TOS. Nope the Terms of Service link at the bottom of the main AIM@Work page takes you to that same obnoxious TOS. I wonder how AIM@Work users might feel about that “you have no right to privacy” line?
Regarding privacy (or the lack thereof), the AIM TOS reserves AOL’s right to read anything you send via AIM:
“AOL is not required to pre-screen Content available on the AIM Products, including the content of any messaging that occurs on or through the AIM service, although AOL reserves the right to do so in its sole discretion.”
Translation: AOL is not obligated to listen in to what you say via AIM, so they’re not legally responsible if you, say, use AIM to trade kiddie porn. However, they can and will eavesdrop on you at any time, for any reason or for no reason.
Notice the conspicuous lack of any obligation for AOL to notify you that they’re reading your online chats, peeking at your transferred files, etc.
THIS IS NOT A NEW PROBLEM
Back in 1999 I wrote the CONTENTIOUS Guide to Grabby Web Hosts. There, I examined the TOS agreements for several free web hosting services and found plenty of similar attempts to claim rights to users’ content. I divided these services into three categories: really grabby, tolerably grabby, and not at all grabby.
I should probably revisit that topic, it’s worth an update. If you read that article, bear in mind that the info it contains was correct as of the time I published that article, but there have probably been lots of changes since then.
At the time, though, it didn’t occur to me that similar content grabs might arise in chat services. Never underestimate the power of greed, I suppose.
SHOULDN’T YOU EXPECT THIS FROM A FREE SERVICE?
AIM, like most chat services, is free in the sense that you don’t have to pay money for it. However, almost nothing is really “free” there’s always something expected in return. In the case of AIM, might it not be reasonable for AOL to capitalize on the content of conversations that rely on its infrastructure?
Sure, AOL is free to expect whatever it wants, and it is free to do whatever its market will bear. That doesn’t mean I, you, or anyone needs to bow to AOL’s sense of entitlement. We comprise “the market,” and we don’t have to bear the violation of our privacy and the theft of our creativity or efforts. Certainly not when AIM has competitors who are attempting no such grabs.
CHECKING OUT THE COMPETITION
So how do AIM’s three main competitors Microsoft Messenger, Yahoo Messenger, and Skype (which offers text instant messaging as well as VOIP) compare in terms of “grabbiness?”
Here’s what I found:
1. Microsoft Messenger: The terms of service for this chat tool can be found in the software itself as a link to the Microsoft site. Here’s how my version of the TOS reads but check this out under the help topics in your copy of MSN Messenger to verify whether yours are the same:
“We consider your use of the Service, including the content of your communications, to be private. We do not routinely monitor your communications or disclose information about your communications to anyone. However, we may monitor your communications and disclose information about you, including the content of your communications, if we consider it necessary to: (1) comply with the law or to respond to legal process; (2) ensure your compliance with this contract; or (3) protect the rights, property, or interests of Microsoft, its employees, its customers, or the public.”
Nothing about grabbing rights to your content. And the reasons for which Microsoft might pry into my Messenger chats are clearly delineated. OK, I can live with that.
2. Yahoo Messenger: As far as I can tell, Yahoo’s general TOS applies to its Messenger service. Since chats via Yahoo Messenger are not “publicly accessible,” Yahoo is not making any claim on that content. Here’s what the Yahoo TOS says:
“Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Yahoo! the following world-wide, royalty free and non-exclusive license(s), as applicable: …Publicly accessible areas of the Service would not include portions of Yahoo! Groups that are limited to members, Yahoo! services intended for private communication such as Yahoo! Mail or Yahoo! Messenger, or areas off of the Yahoo! network of properties such as portions of World Wide Web sites that are accessible through via hypertext or other links but are not hosted or served by Yahoo!”
I can live with that, too.
“Skype does not collect any Contents of Communications such as calls or Instant Messages.”
OK, I can live with this, too.
ICQ LOOKS JUST AS BAD
I don’t really consider ICQ a competitor to AIM because AOL bought ICQ a while ago.
I’m not 100% sure, but I think ICQ may be trying to grab content rights in a way similar to AIM so I’m glad I stopped using ICQ a while ago.
Here’s what the cryptic ICQ TOS says. Judge for yourself:
“Submission of Information: ICQ does not want to receive any confidential, secret or proprietary information and material from you through the ICQ Web site, ICQ’s mail and e-mail addresses, the ICQ Services or in any other way. ANY INFORMATION OR MATERIAL SUBMITTED OR SENT TO ICQ, EXCLUDING PRIVATE COMMUNICATIONS BETWEEN A USER AND OTHER USERS THAT ARE NOT SUBSEQUENTLY MADE AVAILABLE TO ICQ, WILL BE DEEMED NOT TO BE CONFIDENTIAL OR SECRET. By submitting or sending documents, information or other material (“Material”) to ICQ or by posting information entered on the various ICQ directories and tools, and messages on the ICQ message boards you (1) warrant that you have no rights of any kind to the Material, and that to the best of your knowledge no other party has any rights to the Material; (2) grant ICQ an unrestricted, perpetual, irrevocable license to use, reproduce, display, perform, adapt, modify, transmit and distribute the Material in all media; and (3) agree that ICQ is free to use any ideas, know-how, concepts, techniques or other materials you send us for any purpose.”
I’d really like to hear other people’s opinions on ICQ’s approach to users’ content rights. For the meantime, until its level of grabbiness is clarified, I’ll continue to avoid ICQ.
WHAT ABOUT TRILLIAN AND OTHER CHAT AGGREGATORS?
Many people who have accounts on several chat services find it annoying to have to install, launch, and run several different programs. It’s easier to do all your chatting through a single interface. Hence, there are chat aggregator tools such as Trillian. Another chat aggregator, GAIM, also supports encryption.
Now, remember, AIM’s obnoxious TOS specifically applies only to people who downloaded the free AIM software on or after Feb. 5, 2004.
What if you only use AIM via Trillian or another chat aggregator? What if you never downloaded and installed the AIM software (or at least haven’t done so since Feb. 5, 2004)? Would AOL be able to get so grabby with your chat content and transfered files?
My guess is your content would not be safe. Any chat involves more than one participant, and the AIM users with whom you chat and share files probably are using the AIM software. So AOL can get you coming or going on that one.
Again, that’s just my reading of the situation. If you’re really worried about content rights, don’t use AIM or ICQ for that matter. Stick to Microsoft Messenger, Yahoo Messenger, or Skype.
And check those TOS documents periodically. You never know when they might change.
(Thanks to Randy Cassingham for alerting me to this issue.)