Worst Terms of Service Ever

Popageorgio writes "Yale's Lawmeme features the most oppressive, paranoid web site TOS ever, found at the Central Pacific Railroad Photographic History Museum. 'Additionally, in the event that your actions in violation of this User Agreement result in our being deprived of our exclusive rights . . . you agree to pay us liquidated damages in the amount of five million U.S. dollars . . . . You agree to use only the provided permissions e-mail address (or other e-mail links on this website, as appropriate) and not to telephone us or content contributors with permissions or other requests, nor to attempt to circumvent the provisions of this agreement, and telephone calls placed in disregard of the foregoing will be charged at two hundred fifty dollars per telephone call.'(Emphasis theirs)." The museum acknowledges this is crazy, too -- read on for more.

The legal birdseed here (appropriately and manically illustrated in the manner of The Secret Guide to Computers) makes the copy on Dr. Bronner's Soap look sane; the user agreement ("Click on any link or image to indicate "I ACCEPT" the USER Agreement.") begins with a little blurb about why it's necessary, and asks you not to be put off by the legalese. That might seem disingenuous at first, but buried in the text is this note, too: "[Yes, we know that you think that all this legalese is completely ridiculous, and we think so too, but we also believe that current law unfortunately requires that it be done this way; So if you know of a better, simpler 'legally correct' way, do tell us how!]"

(Besides this amusing legal stuff, the site is actually very interesting, at least if you enjoy U.S. history and trains.)

Comments

Re:Too much time on their hands

[ScrewMaster]

Put it this way: the only original work on the site is the TOS.

And in a hundred years there will be a Web site (or whatever passes for Web sites in the next century) dedicated to the rise and fall of the American Empire. Exhibit A will be that TOS agreement, exemplifying the self-inflicted legal quagmire that brought America to its' knees.

Re:Too much time on their hands

[duffbeer703]

That actually is a legitimate business. The problem is getting access to the original document. Mueseums typically do not allow you to take a Van Gogh off the wall to scan it.

Ever buy a print at the store? A reproduction of a work is a copyrightable work in of itself.

Re:Too much time on their hands

[dvdeug]

Ever buy a print at the store? A reproduction of a work is a copyrightable work in of itself.

No, it's not, not in the US. BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP says that a reproduction of a work does not get a new copyright, because copyright is given for creative works, and reproduction, especially an accurate one, isn't creative; it's merely a reproduction.

Completely Unenforceable

[mpoulton]

The courts have held repeatedly that there is a "right to link" without the permission of the target. Whether agreed to or not, their license agreement cannot prevent anyone from linking to their domain. The overreaching hyperbole that permeates these terms of service is so extreme that I would imagine a court would hold the entire agreement invalid.

Re:It's a JOKE

[kris_lang]

It's not a joke. Look at the text you pointed to: It is very expensive and time consuming to acquire and artistically
restore historic photographs, and we wanted to share thousands of
these wonderful images by placing them online for free viewing by the
public without inadvertently giving away the publication rights which
need to be retained to make our and other museums financially viable.
They have in fact done more than simply scan public domain images. They have scanned and cleaned up public domain images: this cleaning up and de-noising is what constitutes the "creative" aspect of their work. They want to retain their copy-rights (see what the word means now?) to be able to reproduce these pictures possibly in book format and sell them to recoup their expenses and perhaps also for profit.
If they didn't have TOS that said DON'T COPY THESE, THESE ARE OURS, someone else could come along and take their photograph clean-up work and profit from them giving none of the benefits of the work to those who produced their work. Now I agree that I can't claim to know how much work they did unless I could also see what the photos' scans looked like before the clean up.
And as for their phone number call charge, it's effectively the way to stop people from spamming their phone number. They're saying: Listen, we're NOT offering licenses to reproduce these images in any other medium to anyone else, DON'T BOTHER calling us to ask for this. IF YOU WASTE MY TIME by calling me at this number, I'll CHARGE YOU.
Isn't this exactly what most ./'ers are ranting for on the other stories about unsolicited faxes and unsolicited emails? I may not agree with all of the TOS of that site, but I can at least see the necessity for this from their point of view. They're allowing amateurs to look at these wonderful photos which they've cleaned up, but THEY'RE NOT RELEASING THEM under a BSDish license which would let someone else profit from their work, and they're making it clear that everyone visiting the site is made aware of this.

Re:Hold up

[jonblaze]

i just have my thai hooker click ACCEPT for me. she's under 18 and not even a citizen, so i'm pretty much in the clear.

not so. she's an agent to whom you have given actual authority. you--as the principal--are therefore responsible for any contracts that she enters on your behalf by clicking "accept."

i know the parent was just joking, but it's amazing how many people think that getting around a contract is just that simple.