Ramifications of new terms of use

[webstrategy2000]

I have read through the new Business Catalyst Terms of Use and do not fully understand the ramifications of the changes. On the surface, it sounds like a very big change for BC partners.

Firstly, the terms of use state that I am bound by the laws of Ireland (even if I signed up in Australia). It is no coincidence that Ireland has just passed a SOPA style legislation.

Secondly, from my understanding, partners are responsible for the copyright and privacy compliance of every website that they resell.

Hypothetically... if my client posts an image which they found on the internet and they didn't have permission to use and that image needed to be removed: would the partner be responsible for policing that content and ensuring that the client removes the image? Is there a possibility of litigation for partners in regards to their client's sites?

How do I practically ensure that clients are not breaching copyright laws? Do I just do it 'case by case' ie: just wait until I receive a take down notice for an offending item (from BC) and then contact the client and ask them to remove it?

I look forward to further information about these changes. Are other partners feeling a little nervous about this issues?

Thankyou

[Lynda-S]

Overall I read most of the TOU as standard TOU. You mention being bound by the laws of Ireland, that is for users outside the US (which it sounds like you are one of them). If you are inside the US you are bound US Law. I am not familiar with the law Ireland passed so I cannot comment on that. (But I am curious of why are non-US partners are bound by Ireland law?)

You mention the copyright and privacy compliance on the websites you resell. The TOU States:

5. Partner Obligations.

           Without limiting any obligations imposed by this Agreement, if you are a Partner, you understand and agree that:

           (a) If Adobe provides notice to you that a website hosted through the Services on behalf of your Client is alleged to contain material that infringes upon the copyright of a third party, you will work with                your Client in accordance with Section 17 of the General Terms (Notification of Copyright Infringement) to, within five (5) days of receipt of such notice, either: (a) remove the allegedly infringing                material from the website and provide Adobe with written confirmation of such removal; or (b) provide Adobe with a written counter notification consistent with Section 17 of the General Terms. You                agree that Adobe may remove allegedly infringing material if Adobe does not receive a written confirmation of removal or counter notification within five (5) days of your receipt of such notice.

           (b) It is solely your responsibility to ascertain and obey all applicable local, state, federal and international laws and rules in regard to the use and resale of the Services.

           (c) You are responsible for your Clients’ compliance with applicable laws in connection with their use of the Services.

          (etc.)

I believe part of this is simply stating that you will follow all applicable laws, some of this is Adobe making sure they cover their end. Also as for removing "infringing content" it reads that you must remove the content once Adobe provides notice that "your Client is alleged to contain material that infringes upon the copyright of a third party." I do not believe that means you must police your sites that you are reselling. With that said I believe you should be proactive and if you notice a Client clearly using infringing content speak to the Client and remove the content.

This is just my take on things and I will state I am not a lawyer nor is what I said legal advice and I could very well be incorrect in my assessment. It would be nice if someone from the Adobe Legal Department could comment and clarify some things here.

[Liam Dilley]

If you have signed up to other Adobe Products this is pretty much the same. And in terms of the site stuff it is virtually no different to what your abound to now. BC do not allow porn sites or content on sites under their system for example. If you make as site for a client and they start doing that then of course your accountable.

In terms of the Ireland stuff the main thing here is the EU Cookie law's that came into effect at the end of the last month where that information needs to be stated. So if you have a site on that server the sites on there have to have something about the cookie use and have a link to things like the login to those terms etc.

Like Lynda, I am not a Lawyer and people may find something in these, but I do not see these as a problem from when I read through them.

[webstrategy2000]

LiamDilley,

Thankyou for your feedback. As a partner, I would certainly not build/resell  a porn or bit torrent site. This is standard T&C and I would certainly know very quickly if this type of content was on a client website.

However, from my understanding, I believe that the new terms and conditions place a significant amount of responsibility/liability on the partner.

Will I need to wade through Irish law (as an Australian) to see if my client is compliant in every one of the following areas:

- Copyright compliance of  images and content. This would include the client's blog and website

- Email marketing: ensuring that the client is compliant with Australian and international laws, particularly in regards to spam

- Export/import of data

- SMS marketing

- data security requirements

- how the client retains and stores personal information

- the collection and disclosure of personal information, privacy

- handling of Cookies

Firstly, Business Catalyst is a Content Management System. This means that once I have built the website, the client will change any content/images at their own whim and send out their own email marketing etc. Is it my ongoing responsibility to ensure that they do the right thing (have you ever tried explaining the complexities of copyright compliance to a client? Five minutes later they are back downloading any Google or iStock images with the watermark and adding it to their website)

As a partner, my monthly commission for each website is no greater than $8. For that sum of money, am I potentially liable for the damages caused by my client's website?

It is an important issue to seek clarification on.

[Liam Dilley]

- When you go live with the client, anything illegal you see your obliged to take action, that is in the previous stuff. What the client does their after is their responsibility. Same would fall for BC themselves in terms of what they let you and I do.

- If you advise your client about regulations and laws, then your covered. In certain countries your not allowed to have newsletter signup boxes in forms pre-ticked for example. If your client changes it after the fact, you wont be liable.

- export/import of data is the same thing, if you have advised, got your client to sign your contract to agree to similar terms and conditions so they say they wont do anything dodgy then your covered.

- Data security - This is obvious, if you not done your job properly with peoples data and how you buitl the site, just as Adobe BC are with the system features themselves then your liable.

- How the client stores data - limited to BC works so that is BC's realm. IF they store information in emails etc that has nothing to do with you.

- Information and Privacy policy stuff is again your client not you. Between you and them and their data (if they pay you for the yearly fee etc) your bound by those legislations to protect their information.

- Handling of cookies - EU thing, server location so only applies when in the EU (Ireland server) because it does not apply to say here in New Zealand for example. As long as you advise your client they need something and have links to the terms/policies which state these actions on form signups "confirm you read them" a bit like Adobe have done then your covered.

This for me is all obvious and pretty standard stuff. Have you compared the current ones to the old ones? Bar the wording being different and a few extra bits being under the Adobe "bigger scope" of the AdobeID and new things like the cookie regulations in EU its pretty much the same.

But your right it is important to ensure things are ok and I will be emailing one of the BC team who can answer your questions and others I have seen on the forums and point them to them so they can answer the questions directly.

So expect a reply soon hopefully.

[webstrategy2000]

Thankyou LiamDilley.

I understand that a Partner has certain responsibilities when the client's website goes live. I am keen to clarify the extent of a partner's ongoing responsibilities/liabilities.

My experience with Business Catalyst has been mixed. Some things I have been happy with and other things have made me question the value for money that my clients are receiving. The outcome of this issue weighs heavily on my confidence in recommending BC to clients.

Thanks

[Liam Dilley]

I will get them directed to threads later today.

You can just call me Liam, Clearly Liam Dilley = Liam Just cant have spaces.

[MagdaN]

Hi,

To clarify a few things. Adobe’s corporate structure is set up such that all customer transactions in North America are with Adobe Systems U.S.  and all customer transactions outside of North America are with Adobe Systems Ireland.This has been the case for years, and all our contracts of any kind (Terms of Use or individual contracts on big enterprise deals alike) include this statement. It is not that we have recently changed due to whatever current legislation in that specific country.

As to the copyright requirement. What we want to state there, is that we require the cooperation of our partners when faced with a copyright breach. We want to work with you and your customers to get this fixed as soon as possible when situations like this arise. Under the Digital Millennium Copyright Act (DMCA), Adobe is legally obligated to take down content that it hosts when it receives a valid DMCA notice alleging that such content infringes someone else’s copyright.   We recognize, however, that some of our partners’ clients do not realize that their websites are hosted on an Adobe platform.   As a result, our new Terms give partners a window of opportunity to work with their clients directly to ensure that they either  take down content that is the subject of a valid DMCA notice, or file a compliant counternotice so that such content may remain live rather than simply having Adobe remove the content directly.

Hope this helps, but if you have further questions do let me know.

Magda Neagu

Partner Manager BC

[Liam Dilley]

Thank you Magda. I thought nothing much had changed so it is great to get that cleared up. Thank you.

[webstrategy2000]

Thankyou for your response.

I would agree that the DMCA provisions in the terms of use, with the five day warnings, can make it easier to resolve certain copyright issues.

However, these are my specific concerns which still remain unanswered:

1. Business Catalyst is a Content Management System. This means that the web designer is contracted to design and set up a website and then hands it to the client to 'update and add their own content'. Once the initial website is built, it is not uncommon for the web designer to not hear from the client for a couple of years  (they might contact you if they really get stuck, but generally the client is happy to update their own website and content).

2. The additional new terms of use (number 5 - partner obligations) state that:

If you are a Partner, you are further responsible for your End User clients’ compliance with applicable laws in connection with their use of the Services.

3. If the client adds content to their website and it infringes another parties' copyright (say for example two years after the web designer has set up the website), does this mean that the partner is legally liable for the damages? The new terms do say that the Partner is responsible for the clients' compliance.

4. As a non-US partner, I am bound by Irish law. The Irish 'SOPA' style law goes further than the DMCA take down provisions. It can include injunctions on entire websites and 'intermediaries' can be liable for damages.

Questions:

1. Do these new terms of use make non US Partners (who are bound by the laws of Ireland ) legally liable for user-generated content and every future change that the client makes to their website?

2. Does number 5 - partner obligations then make non US Partners an 'intermediary', the definition of which has important ramifications?

[sanderfeinberg]

This is all pretty straightforward stuff. However I do not see anything addressing item 16 which seems to give Adobe unlimited rights to my clients' images and the ability to modify and distribute them in any way. No photographer or artist will agree to this. I will not be able to continue to develop sites until this is clarified.This is worse than Facebook! Why in the world would Adobe need such broad rights? And they are  "transferable, sublicensable." How can I trust Adobe or their "sublicensers" (sic)  anymore than a Facebook app developer?

" ...submit in the course of using the Services (“Content”); however, Adobe needs certain rights to Content in order to provide the Services. Accordingly, you hereby grant to Adobe and its service providers and designees a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), create derivative works of, transmit, publicly display and publicly perform such Content, in any media now known or hereafter developed."

[Liam Dilley]

Got some info on this for you.

Google drove has an almost identical statement and it's already been explained.

For google to be able to deliver your content and allow you to share it to multiple devices and other people as part of cloud.

With the whole creative cloud from adobe I am guessing this is the same.

Them needing the agreed rights to offer the service.

Will try see if I can get someone to confirm.