A change by AOL to the terms of service of its IM app has had the ‘net buzzing for a couple of days now (BoingBoing here; Broadband Reports here, and note especially their comments; Tech Law Advisor here; Privacy Law Blog here; MicroPersuasion here; EWeek here). Some posts say the change is recent, but AOL says it was made in February of 2004.
The paragraph that is causing so much agitation:
…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.
"Content" is defined as follows: AOL, its vendors and AIM users who lawfully post content such as information, software, games, communications, photos, video, graphics, music, sound and other materials ("Content") on AIM Products …
And "AIM Products" as follows: For purposes of these Terms of Service, the term "AIM Products" shall mean AIM software (whether preinstalled, on a medium or offered by download), AIM services, AIM websites (including, without limitation, AIM.COM and AIMTODAY.COM) and all other software, features, tools, web sites and services provided by or through AIM from America Online, Inc. and its business divisions (e.g., Netscape) (collectively "AOL") and AOL’s third-party vendors.
Private thoughts exchanged on IM should stay private, and the average user no doubt believes that using AOL’s app is neither a fair trade for giving AOL the right to use and misuse one’s chat any more than it should give AOL the right to exploit the Content for any purpose at all, other than solely as necessary to operate the app in the (private) manner intended by the user.
AOL says it agrees, and is saying now that people are misunderstanding the TOS, and that much should be made of the choice of word "post" (ie you "post" on forums, etc. and on IM clients you, well, you do something else), and that the privacy waiver only applies to Content (because it was in a section titled "Content You Post" – even though the TOS say "The section headings used herein are for convenience only and shall not be given any legal import."). (No doubt the drafter has heard some harsh language for not using the phrase "You waive any right to privacy with respect to the Content" and for not carving out everything other than posts on public forums), but it all sounds too much like a PR recovery operation. A rather disastrous PR consequence of what was probably an exercise in sloppy drafting …
David Fraser is on watch to see when the story gets picked up by the mainstream media, and whether it will make people uncomfortable with AOL’s foray into VoIP.
I’m wondering whether AOL’s TOS will be any different for the client that is installed on Blackberries.
Update: strangely, no one else is picking up on the point noted above that the last line of the TOS contradicts the AOL explanation of the meaning of the waiver.
Further update: I’ve since learned that the eWeek writer is on top of the question of apparent contradictions / inconsistencies in the TOS. Perhaps they’ll have a further piece on it ….