Earlier this month, Dropbox spawned a new kerfuffle in internet-land with changes to its Terms of Service (TOS).
The outrage was fast and furious. A nice deal of blog and Tumblr and other commentary zeroed in on changes Dropbox announced to its TOS before the 4th of July holiday, and in particular how this or that provision “won’t hold up in court”. See for example J. Daniel Sawyer’s commentary here.
Sawyer was referring to language in the TOS for cloud-server services granting ownership rights to Dropbox or other cloud services.
At least I think that’s what he was referring to, because the Dropbox TOS did not actually grant those ownership rights to Dropbox. Dropbox’ TOS – like similar TOS for SugarSync and Box.net – granted limited use rights to enable Dropbox to actually provide the service. Here is the offending provision:
… you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent we think it necessary for the Service.
To be clear, if Dropbox actually claimed ownership rights to customer files – and actually provided for the same in its TOS – there’s no particular reason such a grant “won’t hold up in court”. There are certainly cases of unenforceable contracts – contracts that are fraudulently induced or in contravention of public policy, for example – but a fully and clearly disclosed obligation in exchange for a mutual commitment of service is enforceable.
As one commenter wrote on zdnet, responding to criticism of similar rights-granting language in the Google Plus TOS,
The verbiage … from the TOS is of a *technical* nature. This way Google can convert media formats and/or compress your uploads without it being considered a “derived work” for you to sue Google over. It also gives Google the right to cache your imagery on their servers, even after you’ve deleted it from the service (cache mitigation is complex). Additionally it covers Google using first and/or third party content distribution networks to provide your media to users in the fastest and most available way possible.
Much of the critical commentary against Dropbox (see examples here and here) complain about seeming legal sleight-of-hand, but consider this: It may seem odd that a company that is receiving voluntary deposits of property would have to insist on a further level of explicit legal statement that it is allowed to actually do what it offers to do. But Dropbox, like Google, is presumably reacting to a culture of lawyers playing “gotcha” games, claiming that unless someone is bludgeoned with repeated confirmations of acknowledgement, we cannot assume acceptance. Why indeed does Facebook repeatedly ask, “are you sure you want to do that?” and “are you sure you want to delete that photo?”
But again, Dropbox did not claim any right of ownership. What it did claim was a right to access files, use the files, display the files and so forth. And since the whole concept behind Dropbox is entrusting files to a third party’s (presumably temporary) safekeeping, the absence of a user’s grant of these rights might perversely leave Dropbox in legal straits.
This was fairly clear in the offending Dropbox Terms, which began (in the paragraph immediately preceding the above-quoted language)
“You retain ownership to your stuff,” and another part which states, “This license is solely to enable us to technically administer, display, and operate the Services.”
Or as noted by the same commenter quoted above from zdnet about Google Plus, “The terms exist within the service, you’re not giving Google and/or Google+ users the right to steal your copyrighted content.”
That being said, Dropbox quickly responded last week with further changes to its TOS which seem to have satiated its noisiest critics. Quoth Dropbox, and note in particular the highlighted first paragraph and the elaborated explanation of the technical reasons why this grant of use right is necessary:
You retain full ownership to your stuff. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your stuff or intellectual property except for the limited rights that are needed to run the Services, as explained below.
We may need your permission to do things you ask us to do with your stuff, for example, hosting your files, or sharing them at your direction. This includes product features visible to you, for example, image thumbnails or document previews. It also includes design choices we make to technically administer our Services, for example, how we redundantly backup data to keep it safe. You give us the permissions we need to do those things solely to provide the Services. This permission also extends to trusted third parties we work with to provide the Services, for example Amazon, which provides our storage space (again, only to provide the Services).
(emphasis added)
If that wasn’t clear already. Just in case someone might ask. Just in case somebody isn’t certain. Just in case. You never can be too certain.
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