Where do we go from here?

I am really excited about the Archive of Our Own. The idea of taking everything we’ve tweaked and adapted, like tagging, for our specific use as fans is just so exciting, and very magical to techno-illiterate me.

And the archive terms of service (ToS), which have been released in draft, are a different kind of experiment, terms of service deliberately written to be as understandable as possible to a motivated but nonexpert reader. Now, in some ways this is a hopeless endeavor. People don’t read ToS. And the few who do rarely have influence on everyone else's choices, though there is a big exception in that I think public backlash probably has influenced the things ToS say about owning the content that you put on someone else’s site. But, in general, people don’t read ToS, and when they do, they are often defeated in their attempts to do so by language that is, if not deliberately, then accidentally-on-purpose too difficult for a nonlawyer to read. It’s hard to tell which terms matter and which don’t, and some of the various ToS-related panics I’ve seen over the years have involved misunderstandings of what’s really necessary (e.g., a really broad license to distribute your content, given the scope of copyright law today) or what certain terms mean.

Moreover, the lesson of hundreds of years of contracts, in multiple legal systems, is that specifying everything in advance is a fool’s game. It simply can’t be done. There will always be gray areas, things that will later on require interpretation. So expecting ToS to be completely clear is going to lead to disappointment, unless the clarity is: “we can kick you off for any reason, any time we want.” And even that—well, you probably shouldn’t take that at face value, either, since it’s highly unlikely that they’ll kick you off for liking kittens, or using too many emoticons. Can isn’t a really useful word: what will they kick you off for doing? You can’t know everything before it happens, though you can often have some good guesses.

So the Archive ToS are, I hope, a lot better than average in understandability. And they have some unusual commitments, like taking the stand that fanworks are fair use.

I am also very excited about Dreamwidth as an alternative to LJ, though cryptoxin has (as usual) perceptive comments. Dreamwidth is in many ways a conventional internet company; its draft ToS are put together well, but they’re still pretty typical, with the usual user indemnity, DMCA takedown, and broad prohibitions on harmful, abusive, etc. content. I find this absolutely understandable, and—precisely because you can’t specify everything in advance—whether they will behave differently is really more about the commitments of the people behind the site than about the ToS; I trust that these people do have a different philosophy than LJ’s current management, and therefore their implementation of similar ToS will differ. Still, the fact that Dreamwidth has found it necessary to put all the typical terms in its draft ToS is a reason, to me, why having a nonprofit group dedicated to fanworks is a good idea, just to provide some diversity at the host level, if you will, and, if we’re lucky, to give other sites reasons to compete for fans.