TOS Update #2

[qilin]

Preface

We have some really difficult topics to work through today, so I hope you bear with me, and discuss the issues that concern you in the comments.

Harassment Occurring on Other Sites

Sometimes, harassment issues between two Dreamwidth users aren't taking place on Dreamwidth itself, but outside of it on other sites. Unfortunately, we cannot take action on this for a variety of reasons. For one, we can't actually affect content or behavior or other sites. For another, we don't have the same tools on other sites as we do here, making such a policy very easy to game. The TOS policies do not have any clauses for such actions taken outside of Dreamwidth.

Dissemination of Locked Content

As strange as it may seem, there actually isn't anything in the TOS against this, either.

There's this clause:

IX. No Resale of Services

You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Website, use of the Website, or access to the Website.

But it's not about spreading around locked posts; it has to do with charging people to access their journals or redistributing the site's trademarks. All other relevant clauses in the TOS have to do with things that members do on the Dreamwidth website.

It's a very tricky issue fraught with feelings of violation but not many solutions. Like all content you give other people access to, such as emails or letters, the person can turn around and abuse the privilege by redistribution. But, unless it's happening on the Dreamwidth site, there's not much we can do about it.

TOS Team Response Times

Our goal is for a response within 24 hours. All members of the team have jobs or kids or other responsibilities that can interfere with immediate responses. What's more, many cases at this point are new situations that don't have routines or precedents set yet. They require us to talk to each other and confer on a course of action and policy. This can take time.

Staying in Appropriate Channels

The TOS section of the Support boards is the main place to make your case; you should open up a support ticket for your needs. We are notified when a new TOS support request is made. You can also email abuse@dreamwidth.org--this will automatically create a ticket in the TOS section of Support, which makes it a good choice if you're having trouble accessing the site itself.

Please do not personally message mark or denise about your case--they are aware of it, so emailing them personally does not help. Keeping your request in the right place makes sure that we have the appropriate logging and tracking for it, as well as allowing your issue to be looked at by whoever is currently available.

Paid Account Refunds

The TOS says that "Payments to Dreamwidth Studios, for account services or for any other purpose, are refundable or transferable solely at Dreamwidth's discretion." There's a lot of factors that go into that decision; for instance, the length of time from payment (as PayPal will penalize refunds given after a certain period of time) or how much of the service people have been using. For instance, seed accounts are now well past the point where we can refund them without penalties. It's possible that we will instead offer alternatives to a refund, such as transferring the paid account status to another account.

If you don't trust giving us money over the long term but would still like the benefits of a paid account, we do have shorter term periods of paid time available in segments as small as 1 month, and six month premium paid account periods. They can cost slightly more, to make up for the greater proportion of the PayPal fee to the payment, but we don't make more money off of them.

Suspending OpenID accounts

We've had a couple people request that we suspend their OpenID accounts for various reasons--we haven't because we want this instead to be a technical ability (as far as I am aware, called "permascreened") instead of something done through hackish procedures like suspending OpenID accounts.

Keeping an eye on policy changes

Unfortunately, it looks like dw_tos_feed isn't working right now--the Mercurial software uses an encoding that gives our syndication system errors. However, you are still able to watch it with another RSS reader; some browsers even have RSS feed reading capabilities built in, like Firefox's live bookmarks. I also would like to point out there is a feed for privacy policy changes.

Comments

[luludi]

Over ¾ of this post pertains to the situation that led to me not using this journal anymore. While I'm glad it made some kind of impression, the TOS didn't change in response to it, and the post only serves to make it more obvious how to harass someone without violating it.

I also see that it fails to mention anything about the powers that be frowning on that sort of behavior (on other sites).

The truth is, there is something that can be done about it... you could suspend the user who is doing the harassing. When initial contact or meeting between the parties happens here on Dreamwidth and the harassment pertains to content obtained here on Dreamwidth, it is entirely appropriate (in mine and many other's opinions) to suspend said user for redistribution of that content. The truth is, there is something that can be done, but Dreamwidth has decided not to do anything, because they do not want to get involved.

[cleverthylacine]

I feel your pain. I've had locked content distributed widely by trolls and also had personal photographs defaced and posted to other sites (fortunately, I or someone I knew owned all of them, and we DMCA'd that asshat). But I think there are probably legal problems involved with this issue, because unless only one person had access to redistributed content, you can't prove that it's the same person--so you have to involve the other site and deal with it there. (I know for a fact that one of my trolls desperately wanted to get me and an ex-friend to fight in public for her entertainment. It's one of the reasons I generally won't friend people who have the other girl friended. Not only do I not want to have her info or for her to have mine, I don't want anyone to be able to make it look like we are reposting each other's content.)

The best thing you can do is post public stuff public so you don't have to let everyone who subscribes to you in, use filters and be very careful to whom you grant access.

[ninetydegrees]

I'm sorry this is happening to you but you can't 'condemn' someone in one place because they are doing something reprehensible elsewhere (my apologies if I misunderstood what's going on) unless the two places have previously agreed on a cooperation policy to prevent such behavior and establish a sort of black list of unwanted users.

[luludi]

My comment refers to dissemination of locked content, copyright infringement and harassment. I would never dream of asking DW to take action in a situation that has nothing to do with them. Despite what many people think, DMCA does not always protect you. Please see my comment below in response to denise for details.

[ninetydegrees]

I must admit the situation isn't very clear to me but, reading your comment, it *seems* they are indeed doing something reprehensible elsewhere, even if the content originates from DW.

[qilin]

Hi, tori--I'm composing a reply to you, but I also want to check in with denise about it, since she handled half of your case, and to also review the reasons for the policy, which are decided by denise and mark, to make sure I'm on track. Unfortunately, denise has been out today while her laptop is fixed, and I'm busy tomorrow until late, so it might be a while longer yet.

[denise]

The reason for not taking action on anything that happens anywhere but on Dreamwidth is because there's no way for us to a). be certain that the situation actually happened (screenshots are editable), b). there's no way for us to conclusively know that Person A on Dreamwidth and Person B on OtherSite are the same person, and c). taking these two facts together, there's no way for us to conclusively say that it's not a case of the person contacting us trying to get someone they don't like suspended from the site out of retaliation.

We aren't, and can't be, responsible for the actions of people on the entire internet. All we have authority over is how people act on Dreamwidth itself, where we can verify the exact, full circumstances of what happened and how it happened. We don't have access to those administrative tools on other sites, so we can't say for sure it's not a case of (for instance) someone taking a screenshot of their own entries, creating an account on another service with someone else's usual username, posting the screenshot of their own entries, and then making a report to us.

(Not to mention, even if it is a legit issue, suspending someone's Dreamwidth account won't do anything to stop whatever they're doing on another site. In my experience, in fact, it only makes the situation considerably worse, as then the other party will seek further revenge.)

Suspending a Dreamwidth account isn't, and shouldn't be, a punitive action. It's reserved for instances where we need to remove things from public view because someone's account was created solely to abuse the service such as by spamming, or instances where a specific post violates the Terms of Service and/or US law -- and in the latter case, only the infringing post is removed from public view. Someone being a jerk on the internet isn't a suspendable offense. We can't, and won't, be the manners police.

The redistribution of one's material elsewhere may be a violation of one's copyright, but that's an issue that one must take up with the site where one's copyright is being violated. The Terms of Service explicitly say that you retain all rights to your content, and that includes retaining all responsibility for the enforcement of those rights.

[luludi]

Thank you. I appreciate your concern.

Despite your unlikely example of someone "framing" someone else for revenge, I stand by my opinion... the user in question (in this case) was very open about the entire incident, in her own, mine and other people's journals. You and Mark have access to see locked posts, who made them, from which IP, etc. etc. and can tell whether or not they have been edited. Screenshots can be edited, yes, but the content in question that PROVES the user on the other sites involved and DW is the same, by her own admission, is still in my journal. She published the link to the harassment in a comment to my journal. There was no question.

I do not appreciate the snarky comment, either, about DW not being the internet "manners police". That was unnecessary and rude. I am not the only user who feels this way and this is not going to be an isolated incident (especially since there is now a post here which states, explicitly, how to harass someone without violating DW's TOS).

Yes, there is DMCA, which is supposed to protect people from this sort of thing, and as you are already aware I did file complaints with each site the content was hosted on. Look at the TOS regarding DMCA on the site she has chosen to show my content:

"A NearlyFreeSpeech.NET member site is defaming me or otherwise injuring me civilly, or is infringing my non-copyright intellectual property rights.

Please forward a copy of your legal finding from a court of competent jurisdiction to our contact address. If you have not yet obtained such a finding, a preliminary injunction or court order is also sufficient.

If you are not able to obtain the above, you will need to work directly with the site operator to resolve your differences. We will have to fall back on our members' contractual assertion that the content they upload is legitimate and therefore we will not be able to get involved."


Sites like this leave no recourse (except through legal channels) for victims of copyright infringement. Technically, the content is DW's too, since the screenshot is an image capture of a page on the Dreamwidth site.

I am not trying to argue with you and that was not my intention by commenting to the post. These are some of the specifics of my particular situation, which will be different, no doubt, from situations which will arise later with others. I appreciate what you have done to attempt to remedy the situation, but I think more could be done, in the future, to protect users from these behaviors.

[beckyzoole]

Disseminating content of locked posts... wow, tricky.

Whenever I tell someone else, "This is a secret, don't let anyone else know", I am taking a chance. I am trusting this person to honor my privacy.

Whenever I put something in a locked post, I am doing the same thing.

I don't think there's anything DW can or should do about that. If I think someone is not trustworthy, I'll take them off my Trusted list. If it's bad enough, I'll ban them.

[scruloose]

This is sort of tangentially related to the TOS, but I have an idea I'd like to propose. A big part of what drove me and some of my circle of friends to Dreamwidth as opposed to LJ is the apparent substantial difference in attitude towards users' content and freedom of speech. Specifically, LJ has demonstrated more than once that they'll suspend or ban accounts for content that offended somebody and prompted angry e-mail, even if the content is not defamatory, obscene (in the legal sense) or otherwise illegal.

Dreamwidth, on the other hand, appears to be leaning much more towards an attitude of "if you don't like it, don't look at it", which would presumably mean that only content that violates a law (presumably US law) or the TOS is liable to get censored. This is awesome and makes me far happier about being part of the Dreamwidth community.

On the other hand, I'm pretty jaded. New sites and young communities usually start out very idealistic, but as the financial situation changes and the number of users gets big, priorities can shift--even before you start talking about situations where the site gets sold to some company or new management or somesuch.

So what would make me feel real confidence would be if Dreamwidth issued a legally binding covenant not to censor any content unless it's in violation of applicable law, and explicitly set it up so that any future owner (successor-in-interest, I think may be the legal term) of the site would be bound by the same covenant. Kind of like the GPL's guarantee of freedom, but for users' content.

What do you think?

[mark]

I think that, in theory, that's a good idea. But in practice, I'm not sure it is. In short: If you look around, you can find people violating the GPL everywhere you go. They don't care about the license, and people don't care enough to sue them to force them to comply.

For Dreamwidth, I don't see a tangible difference in having it or not. Would you want to be on a service where the management is only doing what you think is correct because of some document that forces their hand? No, you'd probably move on to some other service, because there's no sense in staying where you disagree with the philosophy of the ownership.

We do have some safeguards in the LLC's operating agreement (legal contract about how the company is run) to prevent selling out, and to force a majority of profits to be used for the community, etc), but in the end, I believe a site like this comes down to the user's trust in the operators.

Either people trust us (based on our actions and statements) to uphold the things we have said and published, or they don't. And in the end, the way we've structured the business plan (paid accounts, no advertising/sponsorships/etc) dictates that we need to be what our customers demand of us. If we fail you, if we take this site in a direction you aren't happy with, then I hope people will vote with their wallets. "We don't like that, and we won't support it."

Of course, I also hope you'll give us adequate notice so we can fix the problem, first. :-)

Some people don't trust us yet, and that's fine. We're relatively new, all things considered. But check back every few months, watch what people are saying, and in the end I believe that we will come to earn people's respect, and hopefully, their business.

What do you think?

[scruloose]

You certainly raise a couple of interesting and valid points. Yes, the GPL gets violated all the time, and many offenders are never pursued. Of course, it's better to have GPL protection than not have it, and some offenders do get sued and end up forced into compliance (eg the Linksys firmware/dd-wrt scenario). It seems clear that if there weren't some threat of consequences, many more people and companies would be ripping off open source code than currently are.

And no, you're quite right that I wouldn't want to be on a service where the management is only doing what I (or the userbase in general) think is right because they're forced to. I think you're quite right that trust plays a big role in the whole relationship. Now, I mentioned in my previous comment, I'm pretty jaded. Trust doesn't come all that naturally to me, and less so in what's fundamentally a business relationship. (In my experience, things have a way of changing when money's on the line--and the more money, the more marked the changes tend to be.) That being said, I definitely want to point out that everything I see so far inclines me to be very pleased with the attitudes of Dreamwidth's management. My trust is extremely hard to earn, but so far so good!

But! In business relationships, there's a constant balancing act between trust and enforceable contracts. The contract has an important role in that it makes the expectations and obligations clear and has some implication that there can be consequences if obligations aren't met. Trust has a vital role in that--contract or no contract--you don't want to get into any relationship with someone who's going to twist the wording of the contract beyond all reasonable interpretation to meet their own ends, or just blatantly ignore it and dare you to sue them.

And the balance definitely shifts significantly from trust to reliance on the contract in the case of the venture being sold someday. Having a clear anti-censorship covenant built right into the terms would send a signal to a potential buyer that if they exercise editorial control over users' content, they're going to be violating their contract and taking a risk (if slight) that some coalition of users could sue them and win. It would presumably tend to discourage buyers who have that in mind (though they might choose to take the risk in the end).

For my part, I trust Dreamwidth about as much as I can imagine trusting a business venture that I've only had a few months' contact with; and I can confidently assure you that if things start going in directions I'm not okay with, I'll certainly complain and try to get things corrected before I just bail out.

All in all though, I still see a valid and potentially important role for having that trust backed up by a clear and unambiguous covenant which provides some incentive (or enforcement mechanism) to stay on the right path if and when the temptation comes up to go wrong. Even the most trusting business relationship has some element of a balance of power.