Google's Chrome Terms of Service originally out a royalty-free license for Google of any content submitted by users over the internet. Google responded within hours and made the necessary changes to all questionable language.
UPDATE: At about 4:00PM EST, I've received the following note:
One thing that's different in the software engineering world from the legal world is that in software engineering, we deal in discretes -- anyone can test algorithms and instantly get absolute answers (I was a software engineer before I got into IP law). But in the legal realm, a lot of what goes on is interpretation, argument, and lots of grey areas (and even then, the question is "how grey is that grey?"). So you can call this conspiracy theories or a mistake if you want, but I'd rather think of it as misunderstanding between what we were interpreting and what Google was trying to convey. I wasn't trying to induce some conspiracy theory or promote any ill will towards Google (I'm a faithful user of google search, gmail, analytics, and adsense), but I wanted the record straight.
UPDATE 2: Google has updated the ToS and it now states
The questionable language has been removed entirely. I didn't think it was necessary for Google to step that far back, but it's definitely more in line with the mantra of "Do No Evil." Based on these changes, I can legitimately say that I recommend the download and use of Chrome.
Some have argued that one of the basic tenets of contract law is violated by Google's clarification - a modification of an agreement typically requires additional consideration (consideration in lay terms is generally "something of legal value", and there are a million caveats to that). To dispose of this issue, it's important to note how EULAs/ToS are treated in virtually every consumer service business -- continued use is sufficient consideration for the modification, because these companies are under no obligation to continue giving you service, and you are under no obligation to continue using it.
If you're looking for someone to blame, I think you missed the point. As Matt Cutts (the software engineer I blasted below) points out, there's bound to be things that get by everyone (that's what public bug reports are for). It's far more important for the [open source] industry that we concentrate on addressing issues instead of pointing fingers, and I consider this issue resolved, and all (both Google and the online community) are better off because of it.
UPDATE 3: International Users have informed me that EULAs for other countries has not yet been updated. As a number of IP, consumer protection, and contract laws are much more vigorous (especially in the EU) than their US counterparts, I foresee that this change will filter down through Google's international legal departments. At the moment, there has yet to be any harm caused by this issue, and Google is busy translating this disambiguation to the 40+ languages in which Google offers services.
Original Article:
If you're like every other geek, you were one of the many people who downloaded Google Chrome within minutes of it's 3:00PM EST release on Sept. 2, 2008. 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.
Section 1.1 defines services:
Since Chrome is a Google product/software, then it is part of the "Services". The content you post to any site is thus subject to Section 11 licensing because the content you post is something "which you submit, post or display on or through, the Services".
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. This doesn't just apply to blogger, youtube, gmail etc, and if you think it does, re-read section 1.1 and 11. It applies to everything you pass through Chrome. Google can take your submitted content and edit and reuse it all they want, as long as they do so in connection with Chrome. Even further, you're claiming that you have the power to grant these rights. So the people who work for Conde Nast (Wired, Arstechnica), TechCrunch, Gawker, any of the other big web publishers, or a university where the employee is performing research probably can't agree to the Chrome ToS because these people 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 class credits and the university typically gets copyrights to any writings and exclusive patent rights to any research and inventions. In essence, 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. Now, this does change slightly based on jurisdiction; under German IP law, there are a number of IP rights that content creators simply cannot give up contractually.
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. 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.
A number of other people have argued along the lines of "who cares about my forum/aggregator comments". This post is not aimed in regards to your web comments. Most aggregators, forums, and blogs already make these posts public domain (which means Google, or anyone else, generally, can do whatever they want with them). This is cause for concern when
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 that permission to the scope of 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? I'd like to think that this is just the software guys moving faster than the legal guys and they boilerplate copied/pasted from the other ToS, but Google has an army of lawyers. Someone should have seen this. I can't stress it enough that I don't think Google intended for everything passing through Chrome to automagically create a license for Google, but you'd think someone with the resources of Google would have fixed this.
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 easy 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. Note, I'm not your attorney. This is not a legal advertisement; if you have a legal question, always consult an attorney licensed to practice in your jurisdiction.
If you need to contact me, use the TTH contact page. This post received over 150,000 unique visits due largely in part to sitting in the top spot on reddit. I cut out a lot of stuff that's normally in the TTH interface to ease the bandwidth, and want to thank icdsoft and suresupport for their actions in making sure that this content stayed up.
It has come to my attention that a few bloggers have copied and pasted this entire article. I don't have a problem if you do that, but please give a link back as attribution is common courtesy in the content industry. Also Google remedied the situation in hours, which is all the online community wanted. By only including the first half of the article, these guys make it look like certain people just have an axe to grind.
Here's an official response from Rebecca Ward, Senior Product Counsel for Google Chrome:
"In order to keep things simple for our users, we try to use the same set of legal terms (our Universal Terms of Service) for many of our products. Sometimes, as in the case of Google Chrome, this means that the legal terms for a specific product may include terms that don't apply well to the use of that product. We are working quickly to remove language from Section 11 of the current Google Chrome terms of service. This change will apply retroactively to all users who have downloaded Google Chrome."
"In order to keep things simple for our users, we try to use the same set of legal terms (our Universal Terms of Service) for many of our products. Sometimes, as in the case of Google Chrome, this means that the legal terms for a specific product may include terms that don't apply well to the use of that product. We are working quickly to remove language from Section 11 of the current Google Chrome terms of service. This change will apply retroactively to all users who have downloaded Google Chrome."
One thing that's different in the software engineering world from the legal world is that in software engineering, we deal in discretes -- anyone can test algorithms and instantly get absolute answers (I was a software engineer before I got into IP law). But in the legal realm, a lot of what goes on is interpretation, argument, and lots of grey areas (and even then, the question is "how grey is that grey?"). So you can call this conspiracy theories or a mistake if you want, but I'd rather think of it as misunderstanding between what we were interpreting and what Google was trying to convey. I wasn't trying to induce some conspiracy theory or promote any ill will towards Google (I'm a faithful user of google search, gmail, analytics, and adsense), but I wanted the record straight.
UPDATE 2: Google has updated the ToS and it now states
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.
12. Software updates ...
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.
12. Software updates ...
The questionable language has been removed entirely. I didn't think it was necessary for Google to step that far back, but it's definitely more in line with the mantra of "Do No Evil." Based on these changes, I can legitimately say that I recommend the download and use of Chrome.
Some have argued that one of the basic tenets of contract law is violated by Google's clarification - a modification of an agreement typically requires additional consideration (consideration in lay terms is generally "something of legal value", and there are a million caveats to that). To dispose of this issue, it's important to note how EULAs/ToS are treated in virtually every consumer service business -- continued use is sufficient consideration for the modification, because these companies are under no obligation to continue giving you service, and you are under no obligation to continue using it.
If you're looking for someone to blame, I think you missed the point. As Matt Cutts (the software engineer I blasted below) points out, there's bound to be things that get by everyone (that's what public bug reports are for). It's far more important for the [open source] industry that we concentrate on addressing issues instead of pointing fingers, and I consider this issue resolved, and all (both Google and the online community) are better off because of it.
UPDATE 3: International Users have informed me that EULAs for other countries has not yet been updated. As a number of IP, consumer protection, and contract laws are much more vigorous (especially in the EU) than their US counterparts, I foresee that this change will filter down through Google's international legal departments. At the moment, there has yet to be any harm caused by this issue, and Google is busy translating this disambiguation to the 40+ languages in which Google offers services.
Original Article:
If you're like every other geek, you were one of the many people who downloaded Google Chrome within minutes of it's 3:00PM EST release on Sept. 2, 2008. 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.
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.
Section 1.1 defines services:
Your use of Google's products, software, services and web sites (referred to collectively as the "Services" in this document and excluding any services provided to you by Google under a separate written agreement) is subject to the terms of a legal agreement between you and Google.
Since Chrome is a Google product/software, then it is part of the "Services". The content you post to any site is thus subject to Section 11 licensing because the content you post is something "which you submit, post or display on or through, the Services".
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. This doesn't just apply to blogger, youtube, gmail etc, and if you think it does, re-read section 1.1 and 11. It applies to everything you pass through Chrome. Google can take your submitted content and edit and reuse it all they want, as long as they do so in connection with Chrome. Even further, you're claiming that you have the power to grant these rights. So the people who work for Conde Nast (Wired, Arstechnica), TechCrunch, Gawker, any of the other big web publishers, or a university where the employee is performing research probably can't agree to the Chrome ToS because these people 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 class credits and the university typically gets copyrights to any writings and exclusive patent rights to any research and inventions. In essence, 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. Now, this does change slightly based on jurisdiction; under German IP law, there are a number of IP rights that content creators simply cannot give up contractually.
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. 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.
A number of other people have argued along the lines of "who cares about my forum/aggregator comments". This post is not aimed in regards to your web comments. Most aggregators, forums, and blogs already make these posts public domain (which means Google, or anyone else, generally, can do whatever they want with them). This is cause for concern when
- some band posts their audio to itunes, myspace, or amie street; Google could use that music as promotional material for Chrome.
- a 3d artist posts their models to one of the freelance model sale sites.
- a web designer or administrator uses a web IDE to mod some code; that code is fair game to use by Google
- anyone in business to business sales creates an online brochure for a client
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 that permission to the scope of 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? I'd like to think that this is just the software guys moving faster than the legal guys and they boilerplate copied/pasted from the other ToS, but Google has an army of lawyers. Someone should have seen this. I can't stress it enough that I don't think Google intended for everything passing through Chrome to automagically create a license for Google, but you'd think someone with the resources of Google would have fixed this.
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 easy 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. Note, I'm not your attorney. This is not a legal advertisement; if you have a legal question, always consult an attorney licensed to practice in your jurisdiction.
If you need to contact me, use the TTH contact page. This post received over 150,000 unique visits due largely in part to sitting in the top spot on reddit. I cut out a lot of stuff that's normally in the TTH interface to ease the bandwidth, and want to thank icdsoft and suresupport for their actions in making sure that this content stayed up.
It has come to my attention that a few bloggers have copied and pasted this entire article. I don't have a problem if you do that, but please give a link back as attribution is common courtesy in the content industry. Also Google remedied the situation in hours, which is all the online community wanted. By only including the first half of the article, these guys make it look like certain people just have an axe to grind.
In Other News
Possible Dupe: Google Will Change Creepy Browser License - Saturday, 6 September '08 - 12:12:28 AM -0400
Possible Dupe: German Government Tells Citizens Not To Use Google Chrome - Tuesday, 9 September '08 - 5:59:07 PM -0400
Google Chrome Backup Manages User Profiles - Tuesday, 16 September '08 - 4:38:32 AM -0400
Google Releases Windows Version Of New Browser - Thursday, 4 September '08 - 9:54:55 PM -0400
Google Chrome - Wednesday, 3 September '08 - 11:12:36 AM -0400
Keep Up With The Cutting Edge Releases Of Chrome - Wednesday, 17 September '08 - 9:44:59 PM -0400
Google Sites Now Open to Non-Google Apps Users - Thursday, 22 May '08 - 10:57:21 PM -0400
Google Enters Browser Wars with Chrome - Monday, 1 September '08 - 11:16:04 PM -0400