I commented there when they allowed anonymous comments, but I didn't want to register there, because I thought that the TOS was a bit excessive.
I don't know whether Gary Farber is right when he says, "And remember: if you've commented there, and ever quoted anything from the site, and not included the above statement, then you've violated your TOS and are in doo-doo," but if he is, I don't like it.
Also, the funky comment-endorsement voting system will jumble up the order of the comments, making it hard for others to keep track of the intended target of "Right back at you, dumb shit!"
The question, professor Trevor, is whether this hedgehog is compatible with this porcupine. The Farberpine is a particularly prickly pine, and large and fearsome. Does that sound like your type?
Never read the TOS. Why bother. I don't even read standardized contracts that I sign, but that is more of a "do not try this at home" move.
Courts will limit the terms of the TOS to things that are relatively reasonable anyway. Sometimes the nanny state isn't that bad.
People who do read the TOS do a disservice to everybody else. They make it more likely that courts will consider relatively unreasonable provisions to be valid.
This TOS isn't even that bad. They just don't want to deal with people asserting copyright to comments, or have to negotiate with Al when they convert TPM to nano-quantum-holograph pills.
As far as I can tell, Gary is just making up this part:
>if you've commented there, and ever quoted anything from the site, and not included the above statement, then you've violated your TOS and are in doo-doo.
Joe, I'd like to be optimistic, but my understanding is that clickwrap licenses are still up in the air, legally speaking. As usual with problems on the internet, the best solution is probably to send some money to the EFF.
Although in this case I may take the additional step of getting drunk and embarassing Matt in front of his girlfriend. Again.
I'm weirdly jealous of Yglesias's upcoming trip to Iceland. But now it seems all of a piece, owning everyone's content and frolicking the cool white nights away.
On 1 and 8, I've added an addendum addressing this; let me know what you think, and if you feel like considering actually commenting on my post where it is, don't let me stop you, although obviously I appreciate simply being read, let alone commented on anywhere.
I actually sent Matt an e-mail, with a link, asking him if he had any comment, last night immediately after I posted that entry; he mailed back shortly thereafter saying he'd respond substantively (or words to that effect) in the morning. But he is, to be sure, a busy man, and my pay rate for comment is low, so I begrudge him not.
Sorry, there is an inverse correlation between the amount of time I spend in an air conditioner-less office on a 95 degree day and the appropriateness of my humor. I passed "laughs when people fall" about 7 hours ago.
I added yet more (to the post Ogged linked; you remember that one): a hypothetical. Would any lawyer in the house like to tell me if it's impossible for some reason?
I answered at your place -- impossible, no, but very unlikely to really cause trouble. It could conceivably provide a hook to hang a meritless suit on, but the thing about meritless suits brought for harassment is that you don't need a hook. To bring a meritless suit all you need is a filing fee.
I interpret the TPM Cafe disclaimer as a benign "Jon Katz Clause". IIRC (and I may not), a while back, Jon Katz (who wrote for Slashdot) quoted a bunch of comments people had posted on Slashdot in his book on Columbine. People were upset because they said they had never given him the right to use their comments that way. That's the only way I see this TOS ever being applied -- they're reserving their rights to quote a response to one of their posts if they ever write a book on a topic they blogged about.
I suspect what would happen is what usually happens: one party has more money, lawyers and willpower, and the other guy blinks rather than waste thousands of dollars on a piece of IP that isn't worth the trouble. It's a discouragingly stupid system.
"I answered at your place -- impossible, no, but very unlikely to really cause trouble."
I brought up a few points, and i basically agree, but if lawyers were signed up to say "that's unlikely to happen, so let's not cover that," the whole thing wouldn't be there, no?
As I said, I've never taken a contracts course, nor read a formal text, but I'm kinda thinking I'm on safe ground in thinking that advice that says "-that's very unlikely to really cause trouble-" tends not to often be offered for money in terms of actual legal advice.
Since I Am Not A Lawyer, I probably have no idea what I'm talking about, though. I'm only sure I'd advise everyone to not sign there on the line.
But I am not a lawyer, and this doesn't constitute legal advice.
"What would happen if you, as commenter, wrote "copyright reserved?""
Pretty much nothing, last I looked. (I used to be a reasonably expert lay person on this stuff, but having brought it all up again, I really need to refresh to make sure I've not missed something in the last year or so, although I'd be surprised if I had.)
Not incidentally: "...but very unlikely to really cause trouble."
I've really tried hard to make that point from word go. I'm just fairly sure that's not a point of defense in law school, no matter that I've never gone. I'm completely prepared to find that I'm wrong in this.
Geez, Gary, you're testy. Actually, 'vastly unlikely to ever cause trouble, so let's not fight about it' is, in many circumstances, perfectly reasonable legal advice that I have been paid for.
I don't do a lot of IP work, so you may easily know more about this than I. My off the top of the head take on it is that the TOS can only create contractual, rather than statutory, rights, and recovery for breach of a contract is limited to demonstrable damages rather than the statutory damages available for copyright violations. I can't see how TPM could demonstrate damages from failure to use their copyright notice; while anyone can bring a nuisance suit for anything, I doubt that the TOS creates perceptible additional risk of liability to a blogger who reasonably quotes TPM material without the notice.
Making a fuss about the TOS is perfectly reasonable, it's broader than normal and people should know what they're agreeing to. I just think the risk of liability under it is next-door to imperceptible.
Well, lighten up already. I can't say that liability under the TOS is impossible -- nothing's impossible, judges do the weirdest things sometimes. All I can say is 'very unlikely', which you knew already. So if you know the answer don't ask.
(This is probably crankier than I need to be -- I'm still at work and am wallowing in self-pity.)
This is more neuroticism than anything else -- I've been hating my job, which tends to give me writer's block, which means that I end up with deadlines hitting me that I should have been prepared for long ago. If I were better at getting a productive day's work done in a day, I wouldn't be here at midnight.
Clearly I've never well communicated my other ideas as to time well spent, without even going towards the topic of time well-spent with me. Woe. I am as incomplete as ever. Apologies.
I hate the way mental stuff gets in the way. I hope there's a way for things to be better LizardBreath. Of course, if you got all productive, we probably wouldn't see you round these parts, but I'm wishing it all the same.
But to revert to my very very cruel (not intentionally) self: billable hours. Some of us have them, some of us never have.
It's the real thing. Really.
I'll trade my lack of the one for the other, if anyone is trading. Not that I've earned the choice. I'm just noting the trade-offs, as best, and badly, flawedly, as i might in passing.
I can't count the number of hours or days I've stayed in an office while the custodial staff came around. I think I may have made as much as $12/hour for that, mostly, but a few times as much as $14-16, and I felt rich and royal and benefited for it. For years. On some rare occasions of tens of hours, a bit more. (On a few rare occasions, yet more.)
Word has it that I'm prickly. Moi? My bet is that the custodial staff also works long hours, and yet, not quite at the same salary or lifestyle.
I lighten up as well at suggestion as most, I suspect. Not well. But that's probably just me.
It's not class. It's me.
And I didn't post this. Because I'm kind and cuddly and sweet.
It's as Becks put it (interestingly, I think that's the same Jon Katz whose daughter I briefly dated, but that's neither here nor there). The reader-generated content (comments and diaries) is an important feature of the site, the technology is shifting rapidly, and we want to be sure we're allowed to re-print or re-packed our content in other formats (audio podcast? print? some future hypertext-like thing?) and languages (maybe really awesome autotranslation software will be invented) without needing to go through the ridiculously difficult task of securing individualized permission from everyone who's ever had an account with us.
Note that the rights reserved here are *non-exclusive* -- authors retain ownership rights over anything they publish and can likewise move or republish them anywhere they like.
Right. The only thing about it that looked questionable to me, even if not all that practically worrisome, is the requiring of an elaborate copyright notice on all quotations from TPM content, even quotations that would normally fall under fair use. I can't imagine that there's an intent to enforce that against casual quotations/links from other bloggers -- if there isn't it really shouldn't be in the TOS, while if there is I should expect that collective blogosphere pique (and justified pique) will severely reduce the amount of linkage TPM Cafe gets.
I commented there when they allowed anonymous comments, but I didn't want to register there, because I thought that the TOS was a bit excessive.
I don't know whether Gary Farber is right when he says, "And remember: if you've commented there, and ever quoted anything from the site, and not included the above statement, then you've violated your TOS and are in doo-doo," but if he is, I don't like it.
Posted by bostoniangirl | Link to this comment | 08-10-05 3:05 PM
Also, the funky comment-endorsement voting system will jumble up the order of the comments, making it hard for others to keep track of the intended target of "Right back at you, dumb shit!"
Posted by Armsmasher | Link to this comment | 08-10-05 3:13 PM
Pure insanity! Actually, I asked about that before, and settings I have here and your roomie's advice a few comments down helped.
Posted by ogged | Link to this comment | 08-10-05 3:16 PM
Is a porcupine compatible with a hedgehog?
Posted by Hedgical Trevor | Link to this comment | 08-10-05 3:20 PM
Settings, eh? You'd think I'd just ask Yglesias these things.
Posted by Armsmasher | Link to this comment | 08-10-05 3:25 PM
Yglesias is a very busy man.
Posted by ogged | Link to this comment | 08-10-05 3:26 PM
Is a porcupine compatible with a hedgehog?
The question,
professorTrevor, is whether this hedgehog is compatible with this porcupine. The Farberpine is a particularly prickly pine, and large and fearsome. Does that sound like your type?Posted by ogged | Link to this comment | 08-10-05 3:28 PM
Never read the TOS. Why bother. I don't even read standardized contracts that I sign, but that is more of a "do not try this at home" move.
Courts will limit the terms of the TOS to things that are relatively reasonable anyway. Sometimes the nanny state isn't that bad.
People who do read the TOS do a disservice to everybody else. They make it more likely that courts will consider relatively unreasonable provisions to be valid.
This TOS isn't even that bad. They just don't want to deal with people asserting copyright to comments, or have to negotiate with Al when they convert TPM to nano-quantum-holograph pills.
As far as I can tell, Gary is just making up this part:
>if you've commented there, and ever quoted anything from the site, and not included the above statement, then you've violated your TOS and are in doo-doo.
Posted by Joe O | Link to this comment | 08-10-05 3:38 PM
Never too busy to explain to his roommate how to use the Internet, I should think.
Posted by Armsmasher | Link to this comment | 08-10-05 3:39 PM
Joe, I'd like to be optimistic, but my understanding is that clickwrap licenses are still up in the air, legally speaking. As usual with problems on the internet, the best solution is probably to send some money to the EFF.
Although in this case I may take the additional step of getting drunk and embarassing Matt in front of his girlfriend. Again.
Posted by tom | Link to this comment | 08-10-05 3:47 PM
Wait, he's got a girlfriend now?
Posted by ogged | Link to this comment | 08-10-05 3:48 PM
just making up
He's right that that's how the TOS reads. Admittedly, you're right that I can't see a court enforcing it.
Posted by LizardBreath | Link to this comment | 08-10-05 3:48 PM
11: He's dating somebody. I never see him anymore.
Posted by Armsmasher | Link to this comment | 08-10-05 3:52 PM
Wonks have all the luck.
Posted by ogged | Link to this comment | 08-10-05 3:53 PM
I'm weirdly jealous of Yglesias's upcoming trip to Iceland. But now it seems all of a piece, owning everyone's content and frolicking the cool white nights away.
Posted by ac | Link to this comment | 08-10-05 3:54 PM
On 1 and 8, I've added an addendum addressing this; let me know what you think, and if you feel like considering actually commenting on my post where it is, don't let me stop you, although obviously I appreciate simply being read, let alone commented on anywhere.
I actually sent Matt an e-mail, with a link, asking him if he had any comment, last night immediately after I posted that entry; he mailed back shortly thereafter saying he'd respond substantively (or words to that effect) in the morning. But he is, to be sure, a busy man, and my pay rate for comment is low, so I begrudge him not.
Posted by Gary Farber | Link to this comment | 08-10-05 3:56 PM
Iceland is one of the blondest places in the universe. It is also big in per-capita geysers, glaciers, codfish, sagas, ponies, and belief in elves.
Posted by John Emerson | Link to this comment | 08-10-05 4:03 PM
14 - Ogged, I tried to hook you up. No luck, though.
Posted by Becks | Link to this comment | 08-10-05 4:07 PM
I saw that! Thank you. "Get in touch with this guy to discuss anal sex" sure seems like a winner, doesn't it?
Posted by ogged | Link to this comment | 08-10-05 4:10 PM
It would make a great "How I met your mother" story.
Posted by Becks | Link to this comment | 08-10-05 4:11 PM
No it wouldn't.
Posted by ogged | Link to this comment | 08-10-05 4:14 PM
Sorry, there is an inverse correlation between the amount of time I spend in an air conditioner-less office on a 95 degree day and the appropriateness of my humor. I passed "laughs when people fall" about 7 hours ago.
Posted by Becks | Link to this comment | 08-10-05 4:32 PM
That's okay, Becks, Ogged finds "laughs when people fall" attractive.
Posted by L. | Link to this comment | 08-10-05 4:35 PM
I think Becks knew that, L.
Posted by ogged | Link to this comment | 08-10-05 4:37 PM
Rats. Passively pwned.
Posted by L. | Link to this comment | 08-10-05 4:38 PM
I will vote for the first politician to campaign for the creation of a pwnership society.
Posted by eb | Link to this comment | 08-10-05 4:43 PM
I don't think Becks wants Ogged to be attracted to him. He was trying to palm Ogged off on someone else.
Posted by John Emerson | Link to this comment | 08-10-05 4:56 PM
Becks is a she.
Posted by Becks | Link to this comment | 08-10-05 4:58 PM
And therefore necessarily attracted to Ogged. Any other brilliant theories, Emerson?
Posted by ogged | Link to this comment | 08-10-05 4:59 PM
I don't think Emerson reads all the comments thoreauly.
Sorry, I'm banned, I know.
Posted by eb | Link to this comment | 08-10-05 5:05 PM
I was still cleaning the coffee off my monitor after 26—and then 30!
Posted by Armsmasher | Link to this comment | 08-10-05 5:18 PM
I hate to encourage him, but they were fine comments.
Posted by ogged | Link to this comment | 08-10-05 5:20 PM
I added yet more (to the post Ogged linked; you remember that one): a hypothetical. Would any lawyer in the house like to tell me if it's impossible for some reason?
Posted by Gary Farber | Link to this comment | 08-10-05 6:08 PM
I answered at your place -- impossible, no, but very unlikely to really cause trouble. It could conceivably provide a hook to hang a meritless suit on, but the thing about meritless suits brought for harassment is that you don't need a hook. To bring a meritless suit all you need is a filing fee.
Posted by LizardBreath | Link to this comment | 08-10-05 6:17 PM
I interpret the TPM Cafe disclaimer as a benign "Jon Katz Clause". IIRC (and I may not), a while back, Jon Katz (who wrote for Slashdot) quoted a bunch of comments people had posted on Slashdot in his book on Columbine. People were upset because they said they had never given him the right to use their comments that way. That's the only way I see this TOS ever being applied -- they're reserving their rights to quote a response to one of their posts if they ever write a book on a topic they blogged about.
Posted by Becks | Link to this comment | 08-10-05 6:30 PM
What would happen if you, as commenter, wrote "copyright reserved?" I'm pretty sure that they could quote you under fair use anyway. Right?
Posted by bostoniangirl | Link to this comment | 08-10-05 6:49 PM
I suspect what would happen is what usually happens: one party has more money, lawyers and willpower, and the other guy blinks rather than waste thousands of dollars on a piece of IP that isn't worth the trouble. It's a discouragingly stupid system.
Posted by tom | Link to this comment | 08-10-05 7:24 PM
"I answered at your place -- impossible, no, but very unlikely to really cause trouble."
I brought up a few points, and i basically agree, but if lawyers were signed up to say "that's unlikely to happen, so let's not cover that," the whole thing wouldn't be there, no?
As I said, I've never taken a contracts course, nor read a formal text, but I'm kinda thinking I'm on safe ground in thinking that advice that says "-that's very unlikely to really cause trouble-" tends not to often be offered for money in terms of actual legal advice.
Since I Am Not A Lawyer, I probably have no idea what I'm talking about, though. I'm only sure I'd advise everyone to not sign there on the line.
But I am not a lawyer, and this doesn't constitute legal advice.
Posted by Gary Farber | Link to this comment | 08-10-05 8:22 PM
"What would happen if you, as commenter, wrote "copyright reserved?""
Pretty much nothing, last I looked. (I used to be a reasonably expert lay person on this stuff, but having brought it all up again, I really need to refresh to make sure I've not missed something in the last year or so, although I'd be surprised if I had.)
Posted by Anonymous | Link to this comment | 08-10-05 8:25 PM
Not incidentally: "...but very unlikely to really cause trouble."
I've really tried hard to make that point from word go. I'm just fairly sure that's not a point of defense in law school, no matter that I've never gone. I'm completely prepared to find that I'm wrong in this.
Posted by Gary Farber | Link to this comment | 08-10-05 8:27 PM
Geez, Gary, you're testy. Actually, 'vastly unlikely to ever cause trouble, so let's not fight about it' is, in many circumstances, perfectly reasonable legal advice that I have been paid for.
I don't do a lot of IP work, so you may easily know more about this than I. My off the top of the head take on it is that the TOS can only create contractual, rather than statutory, rights, and recovery for breach of a contract is limited to demonstrable damages rather than the statutory damages available for copyright violations. I can't see how TPM could demonstrate damages from failure to use their copyright notice; while anyone can bring a nuisance suit for anything, I doubt that the TOS creates perceptible additional risk of liability to a blogger who reasonably quotes TPM material without the notice.
Making a fuss about the TOS is perfectly reasonable, it's broader than normal and people should know what they're agreeing to. I just think the risk of liability under it is next-door to imperceptible.
Posted by LizardBreath | Link to this comment | 08-10-05 8:37 PM
Geez, Gary, you're testy
Do people even read the posts anymore? He's prickly.
Posted by ogged | Link to this comment | 08-10-05 8:40 PM
"Do people even read the posts anymore? He's prickly."
And yet, so soft, cuddly, lovable, and loving.
And altogether unappreciated.
Damn, the cover story keeps failing. (Ogged, it might be you thirty years later, so keep up the desperate dating.)
Posted by Gary Farber | Link to this comment | 08-10-05 9:24 PM
Well, lighten up already. I can't say that liability under the TOS is impossible -- nothing's impossible, judges do the weirdest things sometimes. All I can say is 'very unlikely', which you knew already. So if you know the answer don't ask.
(This is probably crankier than I need to be -- I'm still at work and am wallowing in self-pity.)
Posted by LizardBreath | Link to this comment | 08-10-05 9:48 PM
I'm still at work
That really sucks LB, but if you stick it out for ten more minutes, at least you won't still be at work on your birthday.
Posted by ogged | Link to this comment | 08-10-05 9:51 PM
That, is clever. I feel much better now.
Posted by LizardBreath | Link to this comment | 08-10-05 9:52 PM
Jeebus, LB. Are these 17 hour days the norm for you? I mean, even on you birthday?
Posted by SomeCallMeTim | Link to this comment | 08-10-05 9:59 PM
This is more neuroticism than anything else -- I've been hating my job, which tends to give me writer's block, which means that I end up with deadlines hitting me that I should have been prepared for long ago. If I were better at getting a productive day's work done in a day, I wouldn't be here at midnight.
Posted by LizardBreath | Link to this comment | 08-10-05 10:04 PM
Do others work this late?
Posted by ogged | Link to this comment | 08-10-05 10:05 PM
Some -- I'm certainly not alone on the floor.
Posted by LizardBreath | Link to this comment | 08-10-05 10:06 PM
Ok, good.
Posted by ogged | Link to this comment | 08-10-05 10:08 PM
"Well, lighten up already."
Clearly I've never well communicated my other ideas as to time well spent, without even going towards the topic of time well-spent with me. Woe. I am as incomplete as ever. Apologies.
Posted by Gary Farber | Link to this comment | 08-10-05 10:10 PM
I failed to follow that in detail, but no hard feelings in any case.
Posted by LizardBreath | Link to this comment | 08-10-05 10:12 PM
I hate the way mental stuff gets in the way. I hope there's a way for things to be better LizardBreath. Of course, if you got all productive, we probably wouldn't see you round these parts, but I'm wishing it all the same.
Posted by bostoniangirl | Link to this comment | 08-10-05 10:32 PM
But to revert to my very very cruel (not intentionally) self: billable hours. Some of us have them, some of us never have.
It's the real thing. Really.
I'll trade my lack of the one for the other, if anyone is trading. Not that I've earned the choice. I'm just noting the trade-offs, as best, and badly, flawedly, as i might in passing.
I can't count the number of hours or days I've stayed in an office while the custodial staff came around. I think I may have made as much as $12/hour for that, mostly, but a few times as much as $14-16, and I felt rich and royal and benefited for it. For years. On some rare occasions of tens of hours, a bit more. (On a few rare occasions, yet more.)
Word has it that I'm prickly. Moi? My bet is that the custodial staff also works long hours, and yet, not quite at the same salary or lifestyle.
I lighten up as well at suggestion as most, I suspect. Not well. But that's probably just me.
It's not class. It's me.
And I didn't post this. Because I'm kind and cuddly and sweet.
And life is complicated.
Prickle.
Posted by Gary Farber | Link to this comment | 08-10-05 10:35 PM
"...but no hard feelings in any case."
Nor on my behalf, at all.
Posted by Gary Farber | Link to this comment | 08-10-05 10:36 PM
But I probably owe LB one smack across my face. If it will help her not scorn me, I'll gladly take it.
Posted by Gary Farber | Link to this comment | 08-10-05 10:46 PM
I'm weirdly jealous of Yglesias's upcoming trip to Iceland.
What is it with people named Matt and going to Iceland?
23: Maybe ogged is Kurt Vonnegut, Jr's dead sister?
Posted by ben wolfson | Link to this comment | 08-10-05 10:47 PM
Jeezus, I can turn into a jerk when I feel pushed, shoved, poked. Sorry.
Posted by Gary Farber | Link to this comment | 08-10-05 11:32 PM
It's as Becks put it (interestingly, I think that's the same Jon Katz whose daughter I briefly dated, but that's neither here nor there). The reader-generated content (comments and diaries) is an important feature of the site, the technology is shifting rapidly, and we want to be sure we're allowed to re-print or re-packed our content in other formats (audio podcast? print? some future hypertext-like thing?) and languages (maybe really awesome autotranslation software will be invented) without needing to go through the ridiculously difficult task of securing individualized permission from everyone who's ever had an account with us.
Note that the rights reserved here are *non-exclusive* -- authors retain ownership rights over anything they publish and can likewise move or republish them anywhere they like.
Posted by Matthew Yglesias | Link to this comment | 08-11-05 11:42 AM
Right. The only thing about it that looked questionable to me, even if not all that practically worrisome, is the requiring of an elaborate copyright notice on all quotations from TPM content, even quotations that would normally fall under fair use. I can't imagine that there's an intent to enforce that against casual quotations/links from other bloggers -- if there isn't it really shouldn't be in the TOS, while if there is I should expect that collective blogosphere pique (and justified pique) will severely reduce the amount of linkage TPM Cafe gets.
Posted by LizardBreath | Link to this comment | 08-11-05 11:51 AM
And likewise, when Al publishes his collected snickers, he won't have to ask for permissions.
Posted by John Emerson | Link to this comment | 08-11-05 12:09 PM