thesixtyone.com - I like it

[GlennCase]

The subject says it all. I was just turned on to thesixtyone.com and I do like it, so I signed up for an account. Here it be:

http://www.thesixtyone.com/glenncase

ROCK!

Glenn Case

[Caravan Ray]

I'm in:

http://www.thesixtyone.com/caravanray/

[obscurity]

I found the indemnification clause of their terms of service too tough to swallow.

[Adam!]

I found the indemnification clause of their terms of service too tough to swallow.

Why exactly? I'm interested to know, because I'm thinking of making an account, but I'm always wary.

11. Indemnity - You agree to defend, indemnify and hold harmless thesixtyone, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the thesixtyone Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the thesixtyone Website.

Seems reasonable restrictions for a common-carrier-type website to have, but maybe I'm not reading between the lines.

[Caravan Ray]

seem ok to me

(not that I read it before signing up. I always have faith in the goodness and honesty of other)

[obscurity]

I found the indemnification clause of their terms of service too tough to swallow.

Why exactly? I'm interested to know, because I'm thinking of making an account, but I'm always wary.

11. Indemnity - You agree to defend, indemnify and hold harmless thesixtyone, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the thesixtyone Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the thesixtyone Website.

Seems reasonable restrictions for a common-carrier-type website to have, but maybe I'm not reading between the lines.

Perhaps we just have different definitions of reasonable :)

To me, it would be reasonable to expect me to hold them harmless, but not reasonable to expect me to defend them (including lawyer's fees) for any action that might arise from some third party's interaction with my music. Someone blows their speakers? Someone is afraid my lyrics will have offended their angelic offspring's delicate sensibilities? I couldn't really afford to defend myself against stupid shit like that in english courts, let alone have to defend a third party against them in a different continent.

Sure, the risk is very low, but then the hazard is very high. And the risk continues after I stop using the site. I can't predict how litigious American society (or any other society with net access, come to that) is going to become in the next decade or two, but I don't like the odds of it geting any better than it is now.

I mean, hell, if you want to be really paranoid, they could probably legally stick me with their bandwidth bill on the back of that clause. Why on earth would I want to open myself up to legal obligations like that in return for, well, fuck-all, really?

[Adam!]

I did some searching around and found that the indemnification clause is boiler plate for common carriers. Youtube has it, gmail has it. Even my ISP has it. But thanks for pointing it out: it's always good to be aware of what rights I'm signing away.

[obscurity]

I did some searching around and found that the indemnification clause is boiler plate for common carriers. Youtube has it, gmail has it. Even my ISP has it. But thanks for pointing it out: it's always good to be aware of what rights I'm signing away.

Yeah, I only use gmail to receive, and I don't have a youtube account at all. If my ISP had terms like that I'd run a mile! Thankfully they don't seem to be boilerplate over here.

[Spud]

iv) is the clause that myspace will need to invoke in order to defend themselves in the recent suicide case. Basically, it seems to say that if you use their technology to do something bad to someone, it is your fault and not theirs, and if they get dragged into it, you will defend them. Not reasonable? Should myspace be held liable in the suicide case? If they are sued, should the offending party pay their legal bills? Why not?

[obscurity]

iv) is the clause that myspace will need to invoke in order to defend themselves in the recent suicide case. Basically, it seems to say that if you use their technology to do something bad to someone, it is your fault and not theirs, and if they get dragged into it, you will defend them. Not reasonable? Should myspace be held liable in the suicide case? If they are sued, should the offending party pay their legal bills? Why not?

OK, well, I don't know anything about this myspace suicide thing so I can't comment on that. But generally I think where we have a different view on this is that you seem to associate 'being sued' with 'having done something bad'. I would like that to be the case, but I'm afraid I do not believe it is. And, if it were, then in order for myspace to be 'dragged into 'it', then surely they must also have done something bad? If so, then surely they should defend themselves, much as I would have to? Otherwise, it's just one party in a contract passing on potential risk to the other party simply because they're the ones drafting the contract. I don't see that as reasonable.

[obscurity]

PS: If that previous post is less comprehensible than usual, it's because I will be hungover tomorrow.

[JonPorobil]

I thought it was because it was written in Legalese.

[Lord of Oats]

A web site with user-generated content should absolutely not be liable for what happens as a result of that content. They're providing a service to the users, and in return, they can get sued over it? What kind of company in its right mind is going to allow for that to happen. If you pay for your own hosting and post lawsuitworthy content, you should be the one that gets sued. If you post the same thing to a site that someone else is paying for, you should still be the one that gets sued. That's a completely reasonable position for them to take, that you and not them should be responsible for your own content.

In theory, you're not assuming any more risk putting a file on this site or another than you are just putting on your own site. Unless you want to factor in that you'll likely get more exposure on a site like this, and therefore be subjected to more views, and hence a greater risk of a lawsuit, assuming a static number of lawsuits per number of views. But if you acknowledge that as your reason, you're basically eschewing success of any kind out of sheer paranoia. You should have nothing to worry about if your content isn't illegal or grossly offensive (Even if it is offensive, our guarantee of free speech should protect you from most suits originating in the US). By acting so distrustful of the system, you could possibly invite people to think your content might be suspicious.

[Caravan Ray]

I found the indemnification clause of their terms of service too tough to swallow.

Why exactly? I'm interested to know, because I'm thinking of making an account, but I'm always wary.

11. Indemnity - You agree to defend, indemnify and hold harmless thesixtyone, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the thesixtyone Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the thesixtyone Website.

Seems reasonable restrictions for a common-carrier-type website to have, but maybe I'm not reading between the lines.

Someone is afraid my lyrics will have offended their angelic offspring's delicate sensibilities? I couldn't really afford to defend myself against stupid shit like that in english courts, let alone have to defend a third party against them in a different continent.

But you expect someone else to take responsibility for "your lyrics"?!? Sorry, it doesn't work that way. The only way you be safe under those circumstances is if you never let anyone hear them. That strategy may work for you - but obviously for most of us here, we are prepared to take that risk.

Having said that though - I'd be surprised if that clause would really hold a lot of weight should someone's songs actually be responsible for something "bad" happening. As I understand it, you really can't sign away your own duty of care and all of the indemnity clauses in the world won't make up for negligence on the part of the publisher.

But the real point here - and I believe the real reason that clause is in the contract, is to protect the service from being sued by the real copyright owners when users upload songs that they don't actually own the rights for - ie if I upload my cover of Glenn Case's Need Stilts - and Glen wants to sue them, they will tell Glenn to sue me instead.

(...at which point, Glenn will tell them that asking users to simply tick a box and promise that they actually own the rights to the song being uploaded doesn't adequately address their duty of care as an online publisher, and Glenn will then sue both of us. It is around now that Glenn will discover that 'Caravan Ray' isn't actually a person with assets, but a registered company with no assets, and during the time lag in US/Aus communications - Caravan Ray P/L has actually gone into receivership)

[obscurity]

A web site with user-generated content should absolutely not be liable for what happens as a result of that content. They're providing a service to the users, and in return, they can get sued over it? What kind of company in its right mind is going to allow for that to happen.

The kind that intends to make money for it's shareholders by selling advertising to people who are drawn to the site for it's user-generated content. Getting sued is one of the risks of doing business, after all. Unless they can find people stupid enough to shoulder all the risk for them, I guess.

If you pay for your own hosting and post lawsuitworthy content, you should be the one that gets sued. If you post the same thing to a site that someone else is paying for, you should still be the one that gets sued. That's a completely reasonable position for them to take, that you and not them should be responsible for your own content.

Yes, in both cases I will be the one getting sued. But in the second case, I will not only have to fund my own defense but that of the site as well. And while I will be in control of my own defense, so I may choose to settle because I can't afford to continue, I'm not in control of the site's defense. They may choose to pay the best lawyers (my) money can buy and litigate to the bitter end. Hey, it's not their money, after all.

And at this point I'm guessing you're thinking 'well you shouldn't have posted lawsuitworthy content, then, you deserve all you're getting'. But this is my whole point - just because an action has attracted a lawsuit, doesn't mean it was wrong. Not all court cases end in a guilty verdict, after all. If the site is sued in relation to my content, it doesn't mean that I have done anything wrong! In fact, given that I have absolutely no desire or intention to distribute material that infringes the rights of another, I think the chances of that happening are very slim. But people get sued for all sorts of dumb shit. A kid listens to a song that, if played backwards and half-speed contains a noise that might be interpreted as 'off yourself', and then kills himself. Grieving parents are not always rational, and often look for someone to blame, and in this case decide to sue. Some nutter that I've never met decides that one of my songs is actually about him personally, considers it to be defamatory, and sues. Somebody buys an expensive set of speakers, cranks his amp up to 11 when listening to the intro of one of my songs, and ends up blowing his speakers when the main part of the song comes in 'cos it's louder than the intro. Etc. etc. In all of these cases, it's reasonable that I have to shoulder the burden of defending myself, because in an imperfect world it's one of the risks that one has to accept when going about one's life. I do not think it's reasonable that I should have to shoulder the burden of defending the site, though. Why should they not have to accept the same risks in doing business that I have to accept in simply living? Sure, we'd all like to be risk-free, but I'm not and they should not be either.

And this isn't even going into the scenario where I am not at fault but the site is. Companies do break the law you know. More often though ignorance and incompetance than any ill intent, but it certainly happens. In that case, why on earth should I have to foot their defense bill?

In theory, you're not assuming any more risk putting a file on this site or another than you are just putting on your own site.

Yes I am! I'm assuming the risk of having to pay for their defense in addition to my own. And unlike my own, I won't be in control of the costs of their defense. I'm assuming the risk that their actions or inactions may give rise to a lawsuit, not just my own.

Unless you want to factor in that you'll likely get more exposure on a site like this, and therefore be subjected to more views, and hence a greater risk of a lawsuit, assuming a static number of lawsuits per number of views. But if you acknowledge that as your reason, you're basically eschewing success of any kind out of sheer paranoia. You should have nothing to worry about if your content isn't illegal or grossly offensive (Even if it is offensive, our guarantee of free speech should protect you from most suits originating in the US). By acting so distrustful of the system, you could possibly invite people to think your content might be suspicious.

If you've done nothing wrong, you've got nothing to fear? I don't like the kind of society that results from that point of view.


OK, just before I post this it's occuring to me that my regular inability to make myself clearly understood could strike here, so I want to repeat my main point again, just to make it extra clear: just because an action has attracted a lawsuit, doesn't mean it was wrong. We all have to accept the risk of that happening, and I don't think it's reasonable for a site to try to pass onto me their risk of that happening to them.

[obscurity]

But you expect someone else to take responsibility for "your lyrics"?!? Sorry, it doesn't work that way. The only way you be safe under those circumstances is if you never let anyone hear them. That strategy may work for you - but obviously for most of us here, we are prepared to take that risk.

No, you misunderstand me. Of course I'm responsible for my lyrics. I'm not trying to pass my risk on to anyone else here. I'm just refusing to shoulder another party's risk for them. See my reply to loo above.

[Caravan Ray]

But you expect someone else to take responsibility for "your lyrics"?!? Sorry, it doesn't work that way. The only way you be safe under those circumstances is if you never let anyone hear them. That strategy may work for you - but obviously for most of us here, we are prepared to take that risk.

No, you misunderstand me. Of course I'm responsible for my lyrics. I'm not trying to pass my risk on to anyone else here. I'm just refusing to shoulder another party's risk for them. See my reply to loo above.

OK - fair enough'

But as I mentioned earlier, I'm fairly sure that the point of that clause is to protect them from you posting material that you don't actually have the right to post, ie you don't own the copyright.
If you were actually posting slandourous, inflammatory or villifying material - then I think it is unlikely that an indemnity clause will extinguish any responsibility of the website for allowing that material to be published.

(I may be wrong - I am merely extrapolating from my meagre knowledge of Aus law. Somebody mentioned a MySpace case re this. I know nothing about that. what happened there?)

[bz£]

But as I mentioned earlier, I'm fairly sure that the point of that clause is to protect them from you posting material that you don't actually have the right to post, ie you don't own the copyright.
If you were actually posting slandourous, inflammatory or villifying material - then I think it is unlikely that an indemnity clause will extinguish any responsibility of the website for allowing that material to be published.

It doesn't matter what the point is-- it's what else you can do with the same clause. Sure, they probably won't ever try and do what obs is afraid of, and they may or may not actually be able to, but why risk it? Especially for what you gain from signing up, which, as far as I can tell, is negligible.


EDIT: On the other hand, the legal stuff from my ISP says the same thing. I suppose it's pretty standard.

13.1 You agree to fully defend and indemnify and hold harmless Lunarpages of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Lunarpages in any way related to your use of the Lunarpages service or any portion thereof.

[roymond]

PS: If that previous post is less comprehensible than usual, it's because I will be hungover tomorrow.

I don't know how the rest of this thread turns out but this is the best clause I've read in a long while and would like permission to use it in signatures, etc. With attribution, of course, whether or not I ever actually use it or even contemplate its use. However, I'd like you to provide full indemnity in anycase, and pay my legal fees for anything that may result from optionally using it.

[Spud]

Somebody mentioned a MySpace case re this. I know nothing about that. what happened there?)

http://www.foxnews.com/story/0,2933,312018,00.html

[Billy's Little Trip]

Somebody mentioned a MySpace case re this. I know nothing about that. what happened there?)

http://www.foxnews.com/story/0,2933,312018,00.html

yikes! It's stuff like this that hurts my heart.

[Hoblit]

iv) is the clause that myspace will need to invoke in order to defend themselves in the recent suicide case. Basically, it seems to say that if you use their technology to do something bad to someone, it is your fault and not theirs, and if they get dragged into it, you will defend them. Not reasonable? Should myspace be held liable in the suicide case? If they are sued, should the offending party pay their legal bills? Why not?

And what obscurity says about our litigious comes fully into play here. Myspace is just an overblown communication device. I mean, if I call someone on the phone and tell them that the world would be better without them AND then they immediately kill themselves... would they be suing Alltel or would they have to sue Verizon? (Assuming my victim's service was VZ) I mean, I'm using their technology to do something bad to someone. Or, do they too have this disclaimer in the paper work as well?

Even if it is, its truly sad that this even has to be addressed really. I guess we don't live in a 'sticks and stones can break my bones but names will never hurt me' world anymore. Personal responsibility has flown out the window with common sense.

<font size="1">My opinion on that case is that the girl would have killed herself at some point anyways. If some internet conversation effected her that adversely, something happening in real life of much greater significance would have surely achieved the same result.</font>

But to be back on topic: Another one of these sites? If I decide to go all out on a promotion campaign, maybe I will sign up. To me this is just another site in line with all of the others that I'd probably never bother updating or forget my user/pass or something.