Contract Review: BlogBurst
The blog synidcator BlogBurst.com (owned by a company called Pluck) came up in conversation at FreelanceSuccess.com. The idea of getting some entity to help promote a blog and possibly, gasp, generate some revenue sounds intriguing to most writers, myself included. So I headed over and read the mandatory license agreement. Here's a walk-through of some of the sections according to my understanding (though remember I'm not a lawyer and this isn't legal advice):
1.2 In the definitions section, notice that a Publisher is any entity that has an agreement with Pluck to license material. That means potentially anyone, and you have no control over who uses what you write.
2.1 This includes the wording "you grant to Pluck and its affiliates a non-exclusive, worldwide, royalty-free, license to reproduce, distribute, make derivative works of, perform, display and disclose the Work (and derivative works thereof) for the purposes of (a) adapting the Work to fit within Publisher web sites without substantially changing its original meaning, and (b) distributing the Work (and derivative works thereof) to Publisher electronic web sites"
Non-exclusive is fine on the surface, because you can also do something with the material. But "make derivative works of" means that the company can change what you write. Yes, it has some limitations, but what does "substantially changing" mean? If you cite a news source that you like in your blog and another one runs the piece, could it replace that reference with one to its own site? I suspect so.
2.2 Pluck can give other publishers the same rights that you grant it, so you could go into competition with others licensing and selling your work - because it's royalty-free. There's another consideration that we'll catch under section 3.
3 Pluck's responsibilities are to ensure that you get a byline (though the size and placement of which - maybe far after the blog entry in a round-up of bylines - it and the publisher determines). You also are supposed to get at least one link to the web site on which your content appears. Now remember 2.2. What happens if the publisher starts sublicensing? It's not clear to me that Pluck guarantees that any further use down the chain of permission will get the same.
4.1 You can get royalties "subject to Pluck's then-current policies." But what will they be? Maybe you won't get any? (Check the site and you'll see that at the time I write this, only the top 100 blogs get any compensation.) And the agreement clearly says that you don't expect payment. It may be that Pluck wants to pay people - at least the current management team does. But what happens if they sell the company down the line? The generosity might be less obvious.
5.1 Trouble here, because we're talking about international publishing over the web. How are you doing to guarantee that your work won't violate any of the list of rights under any legal system in the world? You can't, because what may be legal under one law - take US federal law, for example - may not be under, oh, the libel laws of the U.K. or Canada. There are people who travel to other countries to sue writers because it's a lot easier than doing it in this country.
6.1 If Pluck or some of its licensed publishers do you wrong, you say that $1,000 will be the cap of what you can pursue in court - and that will barely get your lawyer out of bed in the morning.
6.2 This indemnification is not only tied to the overly broad warranties of section 5, but it has the following dangerous clause:
7 The agreement stays in effect unless you terminate it - and you can only do that "by using the Terminate Account feature in the BlogBurst software." Ever try to end a recurring charge, or to stop a series of marketing emails, or anything similar by clicking the appropriate link? 'Nuff said.
8.3 "The parties consent to venue and the exclusive jurisdiction of the state and federal courts located in Austin, Texas" means that if either you or Pluck has a problem with the other, you have to take it up in Austin. That's an expensive proposition unless you live there.
8.7 Pluck can change the agreement as it wants so long as it provides you "notice," and if you send in anything new (and that might be virtually automatic since the company is syndicating your blog), you've agreed to the change. Even if it calls for retroactive changes.
8.8 Any of Pluck's affiliates gets to be included in the indemnification section, and so they could directly sue you.
It takes pluck to come up with some of these conditions, but it would take foolhardiness to agree to them.
1.2 In the definitions section, notice that a Publisher is any entity that has an agreement with Pluck to license material. That means potentially anyone, and you have no control over who uses what you write.
2.1 This includes the wording "you grant to Pluck and its affiliates a non-exclusive, worldwide, royalty-free, license to reproduce, distribute, make derivative works of, perform, display and disclose the Work (and derivative works thereof) for the purposes of (a) adapting the Work to fit within Publisher web sites without substantially changing its original meaning, and (b) distributing the Work (and derivative works thereof) to Publisher electronic web sites"
Non-exclusive is fine on the surface, because you can also do something with the material. But "make derivative works of" means that the company can change what you write. Yes, it has some limitations, but what does "substantially changing" mean? If you cite a news source that you like in your blog and another one runs the piece, could it replace that reference with one to its own site? I suspect so.
2.2 Pluck can give other publishers the same rights that you grant it, so you could go into competition with others licensing and selling your work - because it's royalty-free. There's another consideration that we'll catch under section 3.
3 Pluck's responsibilities are to ensure that you get a byline (though the size and placement of which - maybe far after the blog entry in a round-up of bylines - it and the publisher determines). You also are supposed to get at least one link to the web site on which your content appears. Now remember 2.2. What happens if the publisher starts sublicensing? It's not clear to me that Pluck guarantees that any further use down the chain of permission will get the same.
4.1 You can get royalties "subject to Pluck's then-current policies." But what will they be? Maybe you won't get any? (Check the site and you'll see that at the time I write this, only the top 100 blogs get any compensation.) And the agreement clearly says that you don't expect payment. It may be that Pluck wants to pay people - at least the current management team does. But what happens if they sell the company down the line? The generosity might be less obvious.
5.1 Trouble here, because we're talking about international publishing over the web. How are you doing to guarantee that your work won't violate any of the list of rights under any legal system in the world? You can't, because what may be legal under one law - take US federal law, for example - may not be under, oh, the libel laws of the U.K. or Canada. There are people who travel to other countries to sue writers because it's a lot easier than doing it in this country.
6.1 If Pluck or some of its licensed publishers do you wrong, you say that $1,000 will be the cap of what you can pursue in court - and that will barely get your lawyer out of bed in the morning.
6.2 This indemnification is not only tied to the overly broad warranties of section 5, but it has the following dangerous clause:
(b) any claim or allegation that the Work infringes in any manner any Intellectual Property Right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party.According to this wording, if anyone should so much as charge you with infringing on any of his or her rights, or that something in your writing is obscene or defamatory, of that what you write violates any law or regulation anywhere in the world, you pick up all the expense tabs for Pluck, all of its affected publishers, and all of their managers.
7 The agreement stays in effect unless you terminate it - and you can only do that "by using the Terminate Account feature in the BlogBurst software." Ever try to end a recurring charge, or to stop a series of marketing emails, or anything similar by clicking the appropriate link? 'Nuff said.
8.3 "The parties consent to venue and the exclusive jurisdiction of the state and federal courts located in Austin, Texas" means that if either you or Pluck has a problem with the other, you have to take it up in Austin. That's an expensive proposition unless you live there.
8.7 Pluck can change the agreement as it wants so long as it provides you "notice," and if you send in anything new (and that might be virtually automatic since the company is syndicating your blog), you've agreed to the change. Even if it calls for retroactive changes.
8.8 Any of Pluck's affiliates gets to be included in the indemnification section, and so they could directly sue you.
It takes pluck to come up with some of these conditions, but it would take foolhardiness to agree to them.
posted by Erik Sherman | 5:57 PM
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