Making Web 2.0 Safe for the Enterprise: TOS ?ƒ?? la PBWiki

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Counterpoint

Joshua,

I’ll have to differ with you on this. The key point is the second one you make. PBWiki says that when content is posted on the site, the user grants PBWiki “a worldwide and fully sub-licensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (in whole or in part) in any format or medium now known or later developed.”

You say that you have “no beef with that issue, it’s a free service and is not intended for enterprise use in any way.” Maybe I missed something. PBWiki is a paid service, and PBWiki boasts that “over 25,000 businesses” use PBWiki, including Cisco and AT&T.

What does this mean in practical terms? If you are a good photographer and create a PBWiki site showing your pictures of your last vacation, PBWiki could use one of your pictures on its website, or in its advertising, or could sell a license to use the picture to others, including stock photography companies such as Corbis. Similarly, if you wrote an excellent funny story about your experiences on the trip, PBWiki could give or sell a license to that story to Conde Nast Traveler.

The license clause appears to be limited by the confidentiality clause. However, if the photographer in my example sends a link to ten friends, then unless he has each of those friends sign a confidentiality agreement, then legally the materials are no longer confidential. The unrestricted license then kicks in, and the creator of the content has effectively lost any commercial value in it.

The same rules would apply to business materials. You create a private wiki inside your company, then PBWiki has an obligation of confidentiality. Your company posts a white paper on server storage technology and sends the link to potential customers, then PBWiki gets to do whatever it wants with the white paper including editing it and putting PBWiki’s name on it.

I assume that PBWiki doesn’t intend to do any of those things. But that is like saying “give me your bank account number, signature authority, and agree that I can have the money” and then hope that I won’t do what you have agreed I can do.

PBWiki’s explanation for this, that it prevents them from getting sued for secondary copyright violation, is disingenuous. I’ve been a lawyer for 20 years, and the explanation is legally incorrect. A user who posts content on PBWiki agrees to allow PBWiki to publish it on the web. Part of that agreement should be that PBWiki is not liable if some unrelated third party wrongfully publishes that content elsewhere. It is a simple limitation of liability that a TOS should have. There are 100 wiki companies according to WikiMatrix, and others don’t seem to have the same open-ended unrestricted license that PBWiki demands.

Posted by: marcpantani1@...   Posted on: 03/06/08 You are currently: a Guest | Members login | Terms of Use

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