-2

A lot of web sites, like Github or Facebook, have terms of service for the platform as a whole but also let me publish stuff on pages that I have some control over. I can post a README file on my Github repository, or make a post on my Facebook page, or write in my Instagram bio.

Can I put additional terms of service in there? Like, can I say that by using my Instagram profile (going there, clicking around, checking it every day for new posts, etc.), you agree to indemnify me for any damages that may result to third parties from you using my Instagram profile? As with a web site, acceptance is signaled by using the thing, and if you do not accept the contract, I forbid you to use the thing.

Or can I say that, by accessing some repository I have posted on Github, you agree to this contract that requires you to not enforce any patents you might hold against me for the code I am posting on that repository? (Separate from any license agreement; I mean that the contract would be accepted by going to the Github page and clicking around, searching the issue list, editing the wiki, etc.)

As with the web, it's often possible for me to revoke a person's access to my part of a third-party site (usually by blocking them), so not being blocked and thus being allowed to access the content I have posted to the third-party site might count as consideration?

interfect
  • 5,497
  • 30
  • 53

2 Answers2

1

Can I put additional terms of service in there?

You could, but the user would need to explicitely agree with them. Given that there is no method to do so, they would never take effect.

If the user claims they did not read or agree with your additional contract, unless you can prove otherwise, it would revert to whatever the legal situation was without your contract.

Like, can I say that by using my Instagram profile (going there, clicking around, checking it every day for new posts, etc.), you agree to [...]

No. Browsing your instagram is free and allowed. To restrict it would need both parties consent. Consent cannot be given by drive-by-contract. You cannot throw a stone through someone's window wrapped in a letter stating "by receiving this stone you agree to pay for all damages". That is not how contracts work.

So to sum it up: you need consent. Consent can be given and there are rules how it can be given. Sometimes it needs to be written, sometimes spoken, sometimes a nod will be enough, sometimes, acting according to the agreement might be enough. But in all cases, the agreement has to be known. Yours is not. I can just not read it. Unless it pops up and won't let me continue without reading it, there is no way to show that I indeed read it, or agreed to it.

That said, I mentioned that not having an agreement with you, the legal situation reverts to it's default. For browsing Instagram or Facebook, that default is "yes, sure, thats what it was made for". But what if the default is "no"? For example, take source code or a picture taken by you and posted on Instagram. The default is that you have copyright on your work. You gave a license to publish it to GitHub/Instagram respectively. Anybody viewing it can do so, but they cannot use or republish it. They do not have a license to that, you did not give it to them.

Lets say you put a readme with a license that says "You can use this freely if you send me a beer every Friday". Obviously a little more legalese should be involved, but you get what I mean.

Now the user can claim they did not read that license and are not bound by that license. But... that would make their situation even worse. Because then when using or republishing your work, instead of owing you a few beers as per the contract, they have no license at all and are in violations of copyright laws.

nvoigt
  • 11,938
  • 1
  • 22
  • 55
0

Github

I don't know about the others, but github explicitly allows (or even recommends) to specify a license for your project. That license can include additional terms and restrictions (e.g. by choosing between MIT, Apache or GPL licenses). Of course you can add very restrictive terms (such as that using your software costs $$$). Patent restrictions or the lack thereof can also be part of the license (Patents are explicitly mentioned in Apache-style licenses, for instance).

Assuming we're talking about public repositories, it will be difficult to control the use, unless you coincidentally find someone using your stuff in his project, in which case you could sue for damages. But to be successful in that, I think your conditions would need to be very clearly and prominently placed on the page. You cannot write something like "This library is available under the MIT license" (the MIT license basically allows all uses of your code, including for commercial purposes) in bold letters and then in some fine print say that "MIT" for you means "MONEY the user INTERFECT gets in THOUSANDS". That would be deliberately misleading and thus a violation of fair competition laws in many countries.

PMF
  • 9,285
  • 2
  • 28
  • 61