EFF Senior Staff Attorney Fred von Lohmann says, ""Some changes to terms of service are good for consumers, and some are bad...but Internet users are increasingly trusting websites with everything from their photos to their 'friends lists' to their calendar -- and sometimes even their medical information. TOSBack will help consumers flag changes in the websites they use every day and trust with their personal information".

We applaud the Electronic Frontier Foundation for providing a tool to keep us aware of these changes. We will certainly give this new product a try and will report on any TOS policy changes that we think are important for you to know about.

At this time, we have only heard from a handful users about their banning, but the general feeling among this group of outcasts is that StumbleUpon had actively hunted them down.

Although none of the banned users have received any sort of communication from StumbleUpon, some believe that they may have been kicked off for occasionally stumbling sites that had financial value. While that may be a big no-no on Digg, who prohibits such a thing in their Terms of Service (TOS), on StumbleUpon, it's much more of a grey area.

The reason why it's not as cut-and-dry as on Digg is because StumbleUpon features a ton of categories - to see what we mean, Stumble something today and check out that drop-down box of theirs. There, you'll find categories that very much fit in the "financial value" niche including options like Bargains/Coupons, Business, Daytrading, Entrepreneurship, Financial Planning, Investing, Marketing, and others. Clearly, StumbleUpon is OK with many more categories of sites than Digg.

In addition, the only reason StumbleUpon would terminate accounts according to their TOS is if the account was created with the primary intention to promote a product or service are considered "SPAM." In other words, the occasional accidental spammy stumble shouldn't get you kicked out.

That sentence goes on to say that those spam accounts are subject to termination unless expressly authorized in advance in writing by StumbleUpon. What? It's OK to use StumbleUpon for spamming purposes if you get permission first? That seems odd.

Banned Behind The Firewall

Others who have been recently banned from the site include Ian Lurie of Conversation Marketing, who believes that he may have been banned because he stumbled behind a firewall at work. Everyone in his office showed up as the same IP address, making StumbleUpon question whether or not they were operating some sort of black-hat stumbling farm. Unfortunately, Lurie never heard back either thanks to SU's policy of not responding to their users (unless you have the clout of someone like the high-profile Darren Rowse of ProBlogger, that is).

Starting To Clean House?

Obviously, we don't have enough information just yet to know for sure if StumbleUpon is starting to clean house. These recent complaints brought to our attention could either be business as usual at StumbleUpon or could be indicative of a new trend.

Have you been banned or know somehow who has been banned from SU? Let us know in the comments.

Is it ok for service providers to require that they be exempt from the copyright norm of no re-use without explicit permission? We don't think it is.

Google's Response

Google responded today by removing the section in question from the Chrome Terms of Service (see below), but they defended its general applicability as part of the company's Universal Terms of Service. They claimed that they have to have a license like this in order to deliver content to consumers as part of the basic functioning of services.

Engineer Sam Greenfield isn't buying it, writing that Google includes permission to use content to promote services and demands "perpetual" and "irrevocable" permission for reuse. Both details don't jive with the companies current explanation of its actions.

It seems that overprotective lawyers are being overprotective lawyers here and a very different solution is needed. It's just disingenuous to claim that rights to reuse are being claimed just in order to perform basic delivery.

The Limitations of Copyright

Why can't Google ask permission of the people whose content they want to reuse for promotional purposes?

As is the case with people interested in reusing the content of others anywhere, it may be that asking for explicit permission just takes too long. That's one of the problems created by copyright law in the US, and increasingly around the world. Many people are open to having their content reused, but it happens legitimately far less than it might because its just too hard to get a hold of people, communicate with them about it, etc.

For a service provider to take its ball home and refuse to play unless users accept that "those copyright laws don't apply to us" is taking the easy way out. It also denies control over content to the people and the situations where reuse may not be appropriate. Passwords, financial information and browsing history were the examples that came up in regards to Chrome - but what about other "work" like user photos and videos? In some circumstances users would be happy to let a service provider reuse these things, in others they wouldn't.

YouTube's Terms of Use use very similar language and have faced similar questions from users. We covered these same types of issues again when Google Docs was released. This is an ongoing issue.

The Flickr Solution: Creative Commons

If you've ever visited the front page of Yahoo's photo sharing service Flickr, you've seen that the company highlights a different user photo each day. Do they email those users and request permission? No, they just select from photos that have already been given a Creative Commons license by the users that uploaded them.

Flickr hasn't been free from controversies of its own regarding copyright. API level access to non CC photos, for example, has rankled some peoples' sensetivities. The way that Flickr handles reuse of photos for promotion on the front page is great, though.

Creative Commons licenses are built on top of existing copyright law and communicate the conditions for future re-use of content. Our favorite CC license, the attribution license, says to anyone interested that they can reuse an item of content so long as attribution is given to the original creator. Other CC licenses grant permission to reuse content only in non-commercial settings, or so long as the content isn't altered. There are a variety of conditions that can be communicated ahead of time, making reuse quick and easy, with no explicit communication required.

How About Some User Education?

Flickr could do a better job of educating users about the CC licensing options they have when they publish their photos, but at least they make it relatively easy to do. Ought not all the services we use online make it easy for us to apply licenses beyond the simplest copyright by default to our content? We can't think of any better way for all parties to win.

Imagine an in-browser way to apply more flexible licenses to any content being published. That would make far more content available for reuse by everyone from individuals to giant companies like Google, but it would also keep control over content in the hands of creators.

Times Are Changing, Terms Need to Change With Them

It's a changing world we live in. The line between content creators and content consumers is far, far more blurry than it's been in recent history and things don't look like they're going to change back. Online service providers recognize that, but they aren't engaging with the situation in a way that suits the times and empowers the users legally like their tools are technologically.

CreativeCommons is just one option - the point is that the Terms under which we use these services online need a new paradigm. None of these services is irreplaceable and we don't need to grovel thankfully at whatever conditions are imposed on us as users.

It's time for a new Terms of Service regime that recognizes the way we're using these tools, facilitates collaboration and respects user rights. Wiggling a blank check for vendors into an otherwise impenetrable wall of copyright-by-default isn't really good for anyone.

Title image: Workbench Melee, CC by Flickr user Flattop341