How Did Every Word and Photo You Leave Online Become an Internet Company's Property?

Users bear all the liability; the platform alone enjoys the rights

How long can your attention hold?

A research report from the Chinese Academy of Social Sciences found that Chinese internet users stay interested in a hot topic for 72 hours at most.

That does seem to be true. The Sina Weibo copyright fight that was everywhere a week ago already looks entirely over.

At the time, Sina Weibo had rewritten its Terms of Service to say that Weibo would be the exclusive publishing platform for user content, that any damages won in copyright claims would belong entirely to Weibo, and that users could not authorize any third party to use Weibo content on their own.

Large numbers of users, content creators above all, began asking whether the platform was using those clauses to take their copyright and their right to use their own work. A few hours later Weibo hurriedly revised the new clauses, keeping only the one that bars users from authorizing any third party to use Weibo content.

Weibo CEO Wang Gaofei came out to explain that the change was only meant to stop third parties from scraping information straight off Weibo. "If someone posts illegal content on Weibo and a third party reposts it and it blows up, I'm the one who gets invited in for 'tea.'"

The third party clearly meant Toutiao. In August, Toutiao had started building its own version of Weibo, encouraging users to import automatically whatever they had already posted on Weibo. Whether because attention is short or because Weibo's explanation worked, few people are still talking about it.

Something about this doesn't add up, though. Imagine a person talking or taking selfies inside a Wanda shopping mall, and Wanda claiming the copyright to all of it on the grounds that it is worried Taikoo Li might take it.

No one would buy that. But the same thing, online, is treated as the natural order of things.

And this isn't about one company.

We went through the content-copyright rules of 30 Chinese internet services

We took the top 50 apps on the free chart of China's App Store; 25 of them are apps where you might post something.

Not just familiar social apps like Weibo and WeChat, but also platforms where users upload video and audio, such as Kuaishou, Xigua Video and WeSing, and review services such as JD.com, Ele.me and Meituan.

We added five more platforms where users post content or comments all the time: Zhihu, Douban, Baidu Zhidao, NetEase Cloud Music and Dianping.

That makes 30 internet services:

• Social networks and Q&A: Weibo, WeChat, Zhihu, Douban, Baidu Zhidao, Baidu Tieba, Neihan Duanzi
• Shopping and food delivery: Taobao, Xianyu, JD.com, Ele.me, Meituan, Dianping
• Audio and video: Tencent Video, Kuaishou, Xigua Video, WeSing, NetEase Cloud Music, Youku, Tudou, iQiyi, UC Toutiao, Bilibili, Douyin, QQ Music, Changba, Huoshan Video
• Tools: Face U, Meitu, Sogou Input Method

Judging by their terms of service, internet companies fall into roughly three groups in how they use what users post.

The first group takes every right for itself. Nine services do this.

"Once you accept JD.com's agreement, this indicates that you are voluntarily and irrevocably transferring any transferable rights (such as copyright and property rights) to any content you post in any form (such as product reviews or topic articles) exclusively to JD.com."

In other words, writing a product review means writing for the platform for free. Even if another platform copies your review wholesale, the damages for that infringement will not be yours.

Meituan, Kuaishou, Dianping and Face U all have terms of service that demand a full transfer of the user's rights. Baidu Space asks instead to share the copyright of posted content with the user.

Taobao, Xianyu and Tencent Video simply declare that the rights to everything on the platform belong to the platform.

All rights (including copyright, trademark rights, patent rights, trade secrets and other related rights) to all products, technology, software, programs, data and other information on Taobao (including text, icons, images, photos, audio, video, charts, color combinations, layout design and so on) belong to Taobao's service provider and/or its affiliated companies.

The second group doesn't force you to hand over your rights, but the platform holds the exclusive right to use your content. Only two services do this.

The user agreements of the two big food-delivery platforms, Baidu Waimai and Ele.me, describe that exclusive use in almost identical words.

"The intellectual property rights to content posted by users are transferred to the platform exclusively and without compensation for its use, and the platform is entitled to the full amount of any damages it wins by enforcing those rights in its own name."

Which means the photos you take of your dinner can be used by those two platforms and no one else.

The third group is the most common: the content still belongs to you, but the platform gets an unconditional, blanket license to use it. Nineteen services do this.

"The intellectual property rights to content that users upload, post or transmit on the platform belong to the users. Once you use our platform's services, it means you agree to grant us, worldwide, permanently, irrevocably and free of charge, the right to store, use, release, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content, as well as the right to sublicense these uses to other third parties."

Permanent, irrevocable, free and transferable are the defaults that turn up most often in agreements of this kind. For a user it means that even though you hold the copyright, whatever you post has already become a resource the app's owner may use as it pleases.

Weibo, Zhihu, the WeChat official accounts platform, Youku, Tudou, iQiyi, NetEase Cloud Music, UC Toutiao, Baidu Zhidao, Neihan Duanzi, Bilibili, Sogou Input Method, Meitu, WeSing, Douyin, QQ Music, Changba, Xigua Video and Huoshan Video all work this way. Their agreements state that the user holds the copyright and other intellectual property rights, and then license the rights that matter — adaptation, publication — to the platform.

Without telling you, the platform can publish your work, or turn your writing into a web series, without paying a cent in royalties.

Zhihu and Douban also acknowledge the user's copyright and take a license through their agreements, but they are far more restrained: a free, irrevocable, non-exclusive license, to be used only in the platform's own products and services.

What you may not have noticed is that Bilibili also has the right to display, distribute and promote the danmu — the comments that fly across the screen — that you post.

Beyond text, the videos and audio you make are not yours to use either once you upload them.

"The user agrees to grant the platform a free, irrevocable, perpetual, sublicensable and exclusive license to use, worldwide, all works the user posts."

WeSing, Douyin, QQ Music and Changba all state plainly in their user agreements that the user is responsible for whether an uploaded work infringes anyone else's rights, and that the platform may use the work unconditionally.

What bothers Kuaishou users most is Article 18, on intellectual property:

The user shall bear full responsibility for all consequences arising from the works they provide. The user agrees that Kuaishou holds a free, perpetual, irrevocable, exclusive and complete license and sublicense right, worldwide, to works uploaded by the user. This license and sublicense right includes, but is not limited to, the copyright and other rights to such works. The user further undertakes not to grant any third party any form of license to use the above works or any adaptations of the above works.

Those three clauses mean Kuaishou pays nothing if content on the platform infringes someone else's copyright, can use whatever users upload without asking, and holds the exclusive right to play it anywhere on the internet.

Toutiao's Xigua Video and Huoshan Video use user works just as freely: both say in their user agreements that uploading a video grants the platform, by default, the free, permanent and irrevocable right to distribute, circulate and adapt it.

It's your own face, and the copyright to the photo still isn't yours.

"Once you use Face U to take a photo and upload it to our servers, you are deemed to have granted us the copyright to that content permanently. We will hold the rights to store, review and display the photo."

The conclusion is plain. The duty to check copyright, which users and platforms should share, now falls on the user alone. And the rights to what users make, from writing to photographs, along with whatever those rights earn, pass to the platform for nothing.

Why did an agreement meant only to set rules for how users behave turn into a document that says "installing it means accepting it," "ownership and any damages we win are ours," "legal liability is yours," and "we don't have to tell you when we change it"?

Internet companies take all of this through an all-purpose agreement nobody can get to the end of

"I have read and agree to the User Agreement above."

If there is a lie in this world that troubles no one's conscience, that sentence is surely one of them.

A recent survey in Britain found that only 7% of users read the terms of service when they sign up.

What the survey really shows, as we all know, is probably that 7% of people lied.

Most people signing a contract — starting a job, renting a flat — don't put their name down straight away. They at least leaf through it, or glance at what's in it.

The paper contracts we run into offline aren't complicated. Opening a bank account, getting a SIM card, signing a lease: those agreements run a page or two.

The teller or the letting agent will even walk you through the points to watch, and hand you the pen only after checking that you understand.

But when you click "I have read and agree to the Terms of Service" online, the odds are you really haven't.

Because terms of service are far too boring and far too long.

To understand the terms behind Tencent's various services, you first have to work through the Tencent Services Agreement, which runs 6,667 characters. And any particular Tencent service may have an agreement of its own on top of that.

Most internet services have agreements on Tencent's scale. By one count, an internet user has to agree to 1,462 privacy policies a year. Reading each one carefully would take 244 hours.

At eight hours a day, that is a whole month of reading.

Since the internet began, the User Agreement has been how internet companies get your information and shed the liability

America Online (AOL) was one of the companies that got users online back in the dial-up era, and a pioneer in bringing the internet into American public life.

In 1994, Pony Ma, Robin Li and Larry Page were still students. Jack Ma had not yet touched the internet, and Mark Zuckerberg was in elementary school.

That year AOL landed in serious trouble. The Washington Times reported that AOL was selling users' personal phone numbers directly to advertising and marketing firms. It was the first report to set off a broad argument about user privacy in internet services.

AOL then revised its terms of service without telling anyone, so that users were assumed to agree that AOL could pass their phone numbers and other personal details to advertising companies for marketing.

AOL later withdrew those clauses. But the practice behind them — internet companies using user agreements to claim as many rights as they can — carried on by default wherever it caused no fuss.

Four years later a more successful internet company solved the problem of using your information to sell ads, with a terms-of-service document and a new business model. That company was Google.

In its terms of service and privacy policy, the giant set out in detail how it collected user information and how it fed that information into Google's own advertising.

It wasn't only the search engine. Google's other services collected information too. Until this July, the contents of every Gmail user's mail were analyzed to work out their habits and sell them ads.

It never blew up the way AOL's case did, because Google did not hand user privacy data to outside advertising firms. It held the information itself, owned the ad slots itself, and took money to put ads in front of particular people.

Facebook, today the largest social network on earth, also used its terms of service to get users, step by step, to make more of their data public.

At the 2010 Crunchies in San Francisco, Facebook's 25-year-old CEO Mark Zuckerberg said privacy was no longer "the default social norm."

What happened in China wasn't very different. Whatever the big Silicon Valley companies did, more or less happened here too.

By now it has reached the point where handset makers use their user agreements to get you to hand over data from other companies' services.

In August, Tencent and Huawei fell into an argument about user data privacy.

Huawei, citing the need to build artificial-intelligence features, collected information including users' WeChat chat records on its new Honor Magic phone.

Tencent accused Huawei of seizing users' private data; Huawei said this was normal behavior, authorized by the users.

And it isn't only Huawei. The user agreement for Xiaomi's cloud service says so outright:

By using this service, the user agrees to Xiaomi's collection and use of certain information about the user and the user's use of this service, in accordance with Xiaomi's privacy policy. The user further agrees that, for the purpose of providing the user with this service and any of its features, Xiaomi may collect, use, transmit, process and maintain information related to the user's account.

In the end, this is still our own choice

The first episode of Season 15 of the satirical cartoon South Park was about internet companies' terms of service.

In it, the main character Kyle starts using an iPad without reading Apple's user agreement. Steve Jobs — still alive when the episode aired — then locks up Kyle and two other users who had agreed to the iTunes terms without reading them, and subjects them to horrifying experiments.

No one, of course, has been turned into a human centipede for signing the iTunes agreement. But there are extreme cases.

In 2011 Aaron Swartz, the internet explorer who was tangled in litigation, killed himself. Before his death he had been handed 35 years in prison for breaking the user agreement of the academic journal database JSTOR: he had downloaded paywalled papers, open only in limited ways to students and researchers, and released them to the public.

These are extreme cases, though. The real reason internet companies have spent all these years taking every kind of right through long agreements is that doing so has never made you feel inconvenienced.

That isn't to say your data is safe. You can probably trust big companies like Google and Tencent to be careful about data security (or can you?). But can you trust a startup that might fold at any moment and have to sell off everything it owns?

To be honest, leaked information rarely has any visible effect on you. For most people, most of what they say and most of the photos they take were never going to turn into money for the person who made them.

What you do notice are the ads that follow once your content has been analyzed. A product you searched for on JD.com turns up in an ad on Baidu. Something you looked at on Taobao and didn't buy appears in your recommendations on Weibo, which throws you a little.

If you were at dinner with a friend talking about yogurt, and on the way out, walking past a Walmart, a clerk came over and said, "I hear you want to buy yogurt, we have some right here" — that would frighten quite a few people. Online it happens every second, and we are used to it.

A digital life that grows more convenient every year is changing our attitude toward our rights and our privacy, in a way that looks absurd and yet makes sense.

Dianping means never having to risk a bad restaurant again. Uploading your location means a map app can get you where you're going fast. You no longer need to remember a friend's birthday, because countless services will remind you.

All of it is free.

Can you imagine paying Google or Baidu a yuan for every search? Or WeChat charging you 20 yuan a month to use its features? Weibo storing the photos you post for a 5-yuan monthly fee?

These companies don't have a branch on every corner the way banks do, but the costs behind them are just as steep: data centers, network bandwidth, marketing, and an ever-growing payroll.

By 2016 Baidu already had 46,000 employees; the services that make up Tencent were built by more than 40,000; Alibaba had 35,000.

Compare the world's ten most valuable companies in 1960 with the ten most valuable today. More than half of today's list is in the internet business, and yet they employ no fewer people than the manufacturers of decades ago.

In exchange for free and convenient, users have given up one right and one piece of privacy after another.

Which kinds of privacy should internet companies not be allowed to take? The boundary keeps moving — and however it moves, it keeps shrinking.

Cover image source: timmeland