| Sunday May 29th 2016

This Post Not Made In Google Chrome

Well there’s no Linux version out yet, but if you’re like every other Windows dork, you were one of the many people who downloaded Google Chrome within minutes of it’s 3:00PM EST release yesterday. There’s no doubt about it — Chrome is ridiculously faster than Firefox and IE. But you, like virtually every computer user out there, probably didn’t even bother to gloss over the Chrome Terms of Service.

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.

In other words, by posting anything (via Chrome) to your blog(s), any forum, video site, myspace, itunes, or any other site that might happen to be supporting you, Google can use your work without paying you a dime. They can go and edit it all they want. Even further, you’re claiming that you have the power to grant these rights. So no one who works for Conde Nast (Wired, Arstechnica), TechCrunch, Gawker, any of the other big web publishers, or a university where the employee is performing research can agree to the Chrome ToS because they most likely don’t have the right to give a license to the intellectual property (IP) they produce.

Most likely your employee or student agreement requires that your employer/university exclusively owns all IP that you make during your time there. Many employment contracts require that the employee signs away exclusive rights to all IP they create during work hours and anything created off hours related to their employer’s business. Students get their credit because the university typically gets copyrights to any writings and exclusive patent rights to any research and inventions. This means that many content creators (news writers, song writers, artists, copy editors, musicians, students) cannot legally agree to these ToS because they’d be in breach of their employment/student contracts.

Further, you probably can’t use your company or school email with Chrome, because your company probably exclusively owns your email, and you can’t give away a license to something you don’t own. You also can’t make representations to Google that you have the power to license this IP if you don’t.

And for the record, Microsoft tried this years ago with MSN messenger, where MS got an irrevocable perpetual license to all IP that passed through MSN messenger, and the net basically revolted. AOL did this too with AIM.

There are some people who have claimed that this is standard legal jargon for every piece of software. Not only is that simply not true, no clause even close to that is in the Firefox terms of service.

And unlike all these people who “are not a lawyer”, I am a lawyer. I am not your lawyer, and this post does not constitute an attorney-client relationship, but Chrome’s ToS are ridiculous. If you’re like me, you use your browser for a lot more than just web browsing. The web browser is an entire application platform (isn’t that the idea behind web apps?). Google simply cannot have a license to all of the IP that goes through my browser. I, as an attorney, cannot give that up, especially because some of it is confidential. The Rules of Professional Responsiblity (which all lawyers must abide by) easily prohibit this exact kind of thing. Until Google scales this back, I will NOT be using Chrome.

With more and more apps being shifted into web browsers, this is almost like MS claiming that it gets a license to any document in MS Word, Powerpoint, or Excel. What if MS got a license to patents, trademarks and copyrights of any software created with Visio or Visual Studio? What if Maya got a license to everything 3d model you made? What if Adobe got a license to everything made in Photoshop? We have to stand up and stop accepting these ridiculous EULAs.

Apparently, some people have misconstrued this to be saying that Google owns everything you pass through Chrome. That’s incorrect. 11.1 clearly states that you keep all your rights to everything passing through Chrome. But, Google does get permission to use anything you do pass through Chrome. The end part of 11.1 limits your permission to use your content for promotional reasons, but then 11.2 and 11.3 extend that (or “clarify,” take your pick) to mean that as long as Google or one of Google’s affiliates use your IP in connection with Chrome, they can do whatever they want.

The worst part is the software guys over at Google saying that it’s no big deal. Well, if it’s no big deal, and they’re not going to enforce it, then why is it in this contract? Take it out, and don’t put it back in. “Do no evil,” remember?

As this topic has ended up on slashdot, some others have recommended rebuilding the Chromium source and associated packages which are mostly under the BSD license. I have not looked into how easily it is to build Chromium under Windows. Of the Linux guys I’ve talked to about it, they either said it wouldn’t compile, or that it compiled but immediately crashed. There is nothing which leads me to believe that the present day 3-term BSD license requires anyone to use Chrome’s license, so this notion that we can recompile to avoid the EULA may actually have some merit.

-David Loschiavo, licensed to practice in FL

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