Terms of Service Draft Part One
Mirrored from otw_news on LJ

From the OTW Content Policy committee:

Here are the draft Terms of Service for the Archive of Our Own, as well as some FAQs we've developed in internal discussion and with the assistance of valiant focus group members.

Some things to note:

1. All together, this is pretty long. We've split it up into two posts and hope that makes it easier to read. Readability feedback is appreciated.

2. This is a draft. We're posting it to get as much input as possible. Very little is set in stone, and many links have been left inactive pending decisions about the organization and layout of the Archive.

3. If there's something you don't understand, please ask. We will try to clarify, and possibly add to the FAQ.

4. If there's something you don't like, it would be really helpful if you'd suggest alternatives.

5. Members of the Content Policy committee will be available to answer questions. Please remember that anonymous comments must be signed in order to receive a response.



The Archive of Our Own is a place for fanworks, including fan fiction based on books, TV, movies, comics, other media, and real-person fiction (RPF).

What We Believe

1. Our goal is maximum inclusiveness (why?) of content in this archive. Our open-source software is available [link to be added] for others to use if they wish to implement the code elsewhere.

2. We are committed to defending fanworks against legal challenges. Our position on transformative fanworks is detailed in the OTW FAQ. We have legal resources and alliances on which we will draw. However, that is not a guarantee that the organization can or will fight each battle. The Board will take into account a variety of factors, both legal and otherwise, in responding to a legal challenge. Further information is available on the OTW site.

3. We strive to make the Terms of Service (ToS) readable. We have tried to provide explanations for the more unusual legal terms. If you have terminology questions not covered here, Law.com’s glossary may help, though we cannot vouch for the accuracy of outside sources, including those referenced in the ToS.

There are five parts to the Terms of Service (ToS):

I. General Principles
II. Age Policy
III. Privacy Policy
IV. Content and Abuse Policies [please see following post]
V. Assorted Policies [these cover specialized issues; we will release a draft in a few days]


I. General Principles

1. The legalese: including where a lawsuit would be filed, when, and under what law

The ToS constitute the entire agreement between you and the Organization for Transformative Works (OTW) and govern your use of the Service (the Archive of Our Own).

The ToS and the relationship between you and the OTW shall be governed by the laws of the United States state of New York (why?), without regard to its conflict of law provisions.

You and the OTW agree to submit to the personal and exclusive jurisdiction of the courts located within New York County (Manhattan), New York.

The OTW’s failure to enforce any part of the ToS will not waive the OTW’s ability to enforce it, and any waiver with regard to a specific instance shall not constitute a waiver of any other breaches of the ToS, even with regard to the same user.

If any provision of the ToS is found by a court of competent jurisdiction to be invalid, you agree that the court should give effect to the parties' intentions as reflected in the provision, and the other provisions of the ToS remain in full force and effect.

You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the archive or the ToS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

2. You agree to the Terms of Service

a. By submitting a story, comment, image, item of information, tag, or any other form of content (“Content”) to the Archive, you state that you agree to comply with the ToS.

b. We may update the ToS as necessary. If the ToS change in the future, this is how the process will work: Changes in the ToS may be proposed at any time by or to the OTW Board. Proposed changes will be prominently disclosed on the [link]site[/link], and we will offer at least a two-week comment period for proposed changes. At the end of the comment period, if proposed changes are adopted by the Board, they will become effective at that time. You can learn about changes in the ToS by visiting the [link]site[/link], subscribing to our [link]RSS feed[/link], [or opting to receive administrative notifications when you sign up for an account].

3. Potential problems with the Service

a. The OTW provides services, including the Archive of Our Own, on an “as is” and “as available” basis. The OTW does not warrant (that is, does not make a legally binding promise) that our services will meet your requirements; that our services will be uninterrupted, timely, secure, or error-free; or that the results you get from using the services will be accurate, reliable, or satisfactory to you. We will endeavor to provide the best possible service to users of the site, but many things (e.g. possible outages, hackings, etc.) are not within our control and we cannot provide for all eventualities.

Any material you download, view, or otherwise access through OTW services or sites is at your own risk. You will be solely responsible for any damage or loss of data that results from the download of any such material.

b. The OTW expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. The ToS govern your use of the OTW’s services, and therefore no communication from anyone associated with the OTW will create any warranty that isn’t expressly stated in the ToS.

c. You expressly agree that the OTW shall not be liable to you for any damages of any kind (even if the OTW has been advised of the possibility of such damages) resulting from the services, including but not limited to your use of or inability to use the services; unauthorized access to or changes in Content or information you submit; and the acts and statements of third parties who use the services.

d. You agree that the OTW shall not be liable to you or any third party for any termination of or limitation on your access to OTW services. The OTW may change, end, or put services or parts of services on hiatus at any time.

e. You agree that the OTW shall not be liable to you for any claim arising out of Content you make available, your use of the Service, your connection to the Service, your use of the ToS, or your violation of any rights of another.

In other words, the OTW is not liable to you for allowing you to post Content, download Content, or do other things with OTW services. The OTW does not assume whatever legal risks you face by posting, viewing, or doing other things with Content.

4. What you can’t do:

You agree to not use the OTW services (including the e-mail addresses and URLs of OTW sites):

a. to make available any Content that violates the [link]Content Policy[/link];

b. to impersonate any person or entity, including, but not limited to, an OTW representative, or falsely state or otherwise misrepresent your affiliation with a person or entity. Pseudonyms are permitted when their use does not violate other aspects of the ToS. Each user account will have a publicly visible username, and the username may have multiple pseudonyms or pennames attached to it. Pseudonyms may not be used to conceal user activity that violates the ToS, e.g., the harassment policy. Roleplay is permitted when the roleplay is clearly disclosed (e.g. in user profile or in another manner appropriate under the circumstances). This policy does not affect fiction marked as such, including real-person fiction in first-person format. Please consult the [link]Content Policy[link] for further information;

c. to forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted to or through the OTW services (headers and identifiers are defined as information actually used or intended to be used to route or authenticate Content, and do not include Content that simulates identifiers as part of a story, such as a fictional e-mail exchange);

d. to make available any Content that a court has ruled constitutes patent, trademark, trade secret or copyright infringement (please be aware of the OTW's position on fanwork legality);

e. to make available any unsolicited or unauthorized advertising (defined as solicitations for direct or indirect commercial advantage), junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation [link to Content Policy: Spam];

f. to make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer or hardware or telecommunications equipment;

g. to interfere with or disrupt OTW sites or servers or networks connected to OTW sites;

h. to create an account if you are a resident or national of any country to which the U.S. has prohibited transactions by mandating a trade embargo; or

i. to use OTW services to break any law that applies to you, including any rules or regulations having the force of law. Just by way of example, do not use the services to disseminate restricted technologies or violate laws governing the export of technical data. This provision is not intended to deal with matters subject to the [link]Content Policy[/link], but the Content Policy cannot cover every law in every country. Content that is alleged to violate the law of a relevant jurisdiction will be dealt with according to the procedures established in the [link]Abuse Policy[/link].

5. Content you see through use of the Service:

a. The OTW or users of its services may provide links to other sites. The OTW has no control over such sites, and you agree that the OTW is not responsible for and does not endorse their content or availability. (Please do [report=link to reporting page] dead links.)

b. You understand that the OTW does not prescreen Content or review it for purposes of compliance with the ToS. This includes but is not limited to story information, story content, text, graphics, comments, or any other material. Content is the sole responsibility of the people who submitted it. You understand that using the Archive may expose you to material that is offensive, erroneous, sexually explicit, indecent, blasphemous, objectionable, or badly spelled.

c. You recognize that the OTW does not endorse Content on the Archive in any way, except when material appears as an official statement of the OTW. No committee members, officers, or directors of the OTW are acting in an official capacity when they post fanwork, commentary, or other Content of the type generally provided by site users. [add link: Where can I find official announcements?]

d. The OTW is not liable to you for any Content to which you are exposed on or because of the Archive.

6. Valid e-mail address:

a. As part of your registration, you agree to provide an accurate and current e-mail address and to update the address as necessary. If your e-mail address is inaccurate or not current, the Archive may suspend your account. Unless there are other circumstances, such as voluntary deletion by a user, Content provided by suspended accounts before the suspension will not be removed.

b. By registering or otherwise using an e-mail address in connection with the Archive, you assert that the e-mail address is not listed on any child protection registry. (There are child protection registries in Michigan and Utah, and our policy applies to any others that exist or may be adopted, whether local, state, or national, including any outside the U.S.)

7. What we do with your content:

The OTW does not claim any ownership or copyright in your Content. Repeat: we do not own your content. Nothing in this agreement changes that in any way. Running the Archive, however, requires us to make copies, and backup copies, on servers that may be located anywhere around the world.

a. You agree that we can make those copies and show your Content to other people, subject to your privacy settings [link to info on privacy settings when the site is live]. Specifically, by submitting Content, you grant the OTW a world-wide, royalty-free, nonexclusive license to make your Content available. “Making available” includes distributing, reproducing, performing, displaying, compiling, and modifying or adapting. (What does this mean?)

Modifying and adapting here refer strictly to how your work is displayed -- not how it is written. We will never change the wording of your story. But because your Content may be transmitted over various networks, we may have to make changes to the formatting or display of your Content in order to adapt to the technical requirements of different networks or devices. Multimedia content may not display properly on all devices. In some circumstances, we may make changes to improve accessibility. For example, we may automatically convert html tags to our standard forms (e.g., changing "bold" html to "strong"). Or we may make special provisions for accessibility, such as allowing you to use nonstandard fonts but also providing an alternate format for those who cannot read such fonts. We may use an internal search engine whose results display relevant snippets from your Content.

b. Subject to the next paragraph of this policy, this license exists only for as long as you choose to continue to include such Content on the Archive and will terminate within a reasonable time after you remove or the OTW removes such Content from the Archive. We will always strive to make your Content unavailable to users as soon as possible should you choose to remove it. Though removed Content will not be publicly available, for legal and disaster recovery purposes we may retain backup copies for longer periods.

c. You may provide Content to a part of the Archive that you do not completely control. For example, you may decide to participate in a challenge run by another user. For our rules on challenges, see here [link to Additional Policies, forthcoming]. Or you may provide Content to a part of the Archive where your Content can be deleted by other users, for example a comments page. Where this is the case, by submitting Content to those parts of the site you agree to the rules for removing and retaining such Content on those parts of the site.

d. You acknowledge and agree that the OTW may preserve Content and may disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process; enforce the ToS; respond to claims that any Content violates the rights of third parties; or protect the rights, property, or personal safety of the OTW services' users and the public.


II. Archive Age Policy

This Age Policy covers the Archive's treatment of users under the age of thirteen (13).

In compliance with United States regulations regarding online privacy for children, the OTW and its sites do not knowingly solicit or collect information from children under the age of thirteen (13). Children under the age of thirteen (13) are therefore not permitted to have an account or upload Content of any type to an OTW site. By submitting Content to an OTW site, you thereby confirm that you are thirteen (13) years old or older. (Why is this our policy?)

Asking a parent or legal guardian to upload Content does not constitute submitting Content under this policy. If you are under the age of thirteen (13), your parent or legal guardian may upload your Content through his or her account.


III. Archive Privacy Policy

1. The OTW firmly supports the right of fans to separate fannish and nonfannish identities. Please be aware that donating to the OTW and using the OTW's services, including the Archive, are entirely separate. You can donate and not use any services, or use any services without donating, or do both without linking the two. We will never link any donation information to any service user information. For more information about donation privacy, please see the OTW Privacy Policy.

2. This Privacy Policy covers the OTW's treatment of personally identifying information submitted to us and which we collect when you use our services in the course of ordinary communications. If you follow links off any OTW sites, you should review those sites' privacy policies, which may be different, and for which the OTW takes no responsibility.

3. If this policy changes at any point in the future, we will post the policy changes to our site [link to where]. Such changes will be used only for information provided by those who have visited, used, or accessed the site after the effective date of such policy changes. If you are concerned about how your information is used, you should check back at the OTW site periodically.

4. If you feel that this site is not following its stated information policy, please contact us [link=contact page].

5. What we will do:

a. We may collect personally identifying information when you register for a user account with an OTW service, visit any of the OTW's sites, or use any of the OTW's services.

b. We will use your e-mail address internally, and if you make it public on the site, anyone can access it and use it for any purpose. We may occasionally send e-mails to you from the OTW. We reserve the right to send you notice of violations or suspensions of the Terms of Service, as well as to reply to any e-mail message you send to the OTW.

c. We may retain (1) the e-mail addresses of those who communicate with us via e-mail; (2) user-specific information about what pages users access or visit; (3) the IP address of each visitor to an OTW site; and (4) any information that a person sends to OTW e-mail addresses (i.e., any e-mail address that ends in transformativeworks.org).

d. We use cookies to store visitors' preferences; customize web page content based on visitors' browser type or other information that the visitor sends; and record activity at a site in order to provide better service when visitors return to our site. Cookies must be enabled for the site to function properly with your computer. The OTW has no access to cookies set by other sites.

e. If for any reason you terminate your user account with us, we will destroy active records containing your identifying information as soon as reasonably possible. "Reasonably" here means no more than seven business days from the termination of the account, but we may have to retain some information for legal records. If we terminate your service, we may retain enough information to prevent you from signing up for the service in the future.

f. If we receive a complaint about a violation of someone’s intellectual property rights, we will disclose the information provided by the rightsholder or the rightsholder’s representative to the subject of the complaint. If we receive a complaint about other matters, such as plagiarism or harassment, we will follow the [link]Abuse Policy[/link], which explains what information provided by the complainant may be disclosed to the subject of the complaint.

6. What we will not do:

a. The OTW will not give out any of your personal information or any of the information we collect, except as provided under this policy. We will not use your personally identifying information to market third party products and services to you. We will not sell, trade, or rent your personally identifying information.

b. We will not disclose your personally identifying information to any third party without your prior consent unless we (1) are legally compelled to do so, (2) have a good-faith belief that such action is necessary to comply with a current judicial proceeding, a court order, or legal process served on the OTW, or (3) are cooperating with law enforcement authorities. As to (3), we will cooperate with all investigations conducted by law enforcement authorities of the United States of America when legally required to do so. Cooperation with law enforcement authorities from other countries and cooperation when it is not legally required are at our sole discretion. Our discretion looks favorably on freedom and justice, and unfavorably on oppression and violence.

c. Unless legally prohibited, we will attempt to notify you any time we disclose your personally identifying information. In some cases, the information we have, such as an IP address, may be insufficient for us to notify you.





General Principles

1. Why does the archive have a goal of maximum inclusiveness?

There are a number of wonderful specialized archives. Our aim with this archive is to provide a place to preserve as many fanworks as possible. At the same time, the archive software can be used by anyone to create their own archives, including archives limited to particular topics, fandoms, or ratings.

2. Why is the agreement between the archive and archive users governed by the laws of New York?

Given the great variation among laws in different places, we want our agreement with you to be governed by predictable and consistent laws.

3. What is an implied warranty of merchantability?

An implied warranty of merchantability is a legal agreement between a seller and a buyer that goods will be reasonably fit for the general purpose for which they are sold. In the United States this warranty is governed by the Uniform Commercial Code (UCC), which allows sellers to disclaim it, thereby shifting the risk back to the buyer.

4. What is an implied warranty of fitness for a particular purpose?

An implied warranty of fitness for a particular purpose is a legal agreement that exists when a buyer relies upon the seller to provide goods to fit a specific request. This warranty requires that the seller know or have reason to know of a specific purpose to which the goods are going to be put, and know that the buyer is relying on the seller's expertise or judgment. In the United States this warranty is governed by the Uniform Commercial Code (UCC), which allows sellers to disclaim it, thereby shifting the risk back to the buyer.

5. Under what circumstances would you suspend an account for an out-of-date e-mail address?

If we need to communicate with you to resolve an abuse complaint, and the e-mail bounces, we will have to resolve it without your participation, which means you won't be able to tell your side of the story. If your e-mail continues to bounce, we will suspend your account because we need to be able to communicate with you if necessary.

In that situation, you can get your account reinstated by associating it with a working email address and, if necessary, dealing with whatever problem led to the abuse complaint in the first place.

Suspension for bouncing isn't a strike. Suspension for bouncing would never lead to permanent suspension, though a sufficient number of sustained abuse complaints while the email was bouncing could lead to permanent suspension.

If we send a routine e-mail about general site policies and it bounces, that will not lead to account suspension, though whatever policies we announce will still apply to all account holders. We will only suspend accounts when individual abuse-related communications bounce.

6. What do we mean by "world-wide, royalty-free, nonexclusive license"?

This means the archive can make your content available to other people (subject to any login requirements that apply) without paying you. We will never charge for access to the archive or otherwise sell your content. You can put your content anywhere else you want, too.

Age Policy

7. Why are children under the age of 13 not permitted to have an account or upload Content?

In the U.S., the Children's Online Privacy Protection Act governs the collection of personal information (which can include things like usernames) from children under 13. Requiring users to be over 13 is the easiest way for us to comply with this law.

Note: The second half of the Terms of Service draft may be found here. Please feel free to leave feedback either on the LJ post or via email (content@transformativeworks.org).