But now we’re fully hip to what’s going on with Rapleaf.com and we’re both amused and horrified. More horrified, to be honest, because Rapleaf is the tip of the Web 2.0 iceberg as it morphs into NSA’s long-feared Carnivore (somebody else said that, just google “rapleaf” and “carnivore” for the guy’s name).
We thought it might be amusing to examine paragraph 12, titled Proprietary Rights, in Rapleaf’s TOS, which says:
The Service is protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Service is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions.
The service is protected to the maximum extent as a collective work and/or compilation. There’s clear recognition in the words maximum extent that the protections available under law for a service like Rapleaf are likely to be minimal, even though Rapleaf claims the fig leaf of protection as a collective work and/or compliation. We suppose that a search result in Google might be considered eligible for copyright protection as a collective work and/or compilation. Auren, you schmuck, what have your underpaid lawyers been smoking? But we shouldn’t say underpaid, because it’s rather more likely that the preponderance of capital invested in Rapleaf is being used to fund legal services rather than software development or marketing. What was the cost of this paragraph in the TOS?
Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Rapleaf.
Like it says in the Preamble to Rapleaf’s TOS:
By using Rapleaf, you agree to act ethically and honestly. You believe that it is more profitable to be ethical. You want to make the world a better place by doing good, not harm. You agree to treat people kindly.
So why not warn Rapleaf’s customers to stay clear of Rapleaf-style practices? “Do like we say, not like we do.”
You further agree not to reproduce, duplicate or copy Content from the Service without the express written consent of Rapleaf, and agree to abide by any and all copyright notices displayed on the Service.
Like it says in the Preamble: “Do like we say, not like what we do.”
This shall in no way inhibit you created [sic] new services with the Rapleaf APIs or doing “mash-ups.” Mash-ups must be in accordance with the Terms but you may innovate and push boundaries. If you are unsure, email us at firstname.lastname@example.org for clarification.
Again, we’ve violated the letter and spirit of every other social network’s TOS, but we’ll allow you some latitude if you play by OUR rules.
You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. RAPLEAF is a trade mark.
We agree that RAPLEAF is a trademark. They have some real intellectual property, not that there’s a soul out there who’d pay the cost of a mocha frappucino to buy a crap name like RAPLEAF. We doubt there’s a soul out there who’d pay the cost of a diet coke to buy the equally crap name of Auren Hoffman.
Although Rapleaf does not claim ownership of content that its users post, by posting Content to any public area of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to Rapleaf an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing.
We’re wondering whether a contract for the grant of an irrevocable, perpetual, non-exclusive, fully paid, worldwide license can be formed without requiring a de minimis consideration. Ah well, these are terms of art that we’re not competent to discuss; but there’s no surprise that Rapleaf would claim for themselves the right to repackage and redistribute materials posted on its site ad infinitum. Our only question is: why do they bother? This may be one of those legal roach motels. Rapleaf might face obstacles in attempting to repackage and redistribute a bare listing assembled by page scraping and other activities in violation of TOS at other sites; but when the roach enters the Rapleaf motel and “claims a profile,” then Rapleaf holds a license to repackage and redistribute all of the roach’s data ad infinitum.
Our advice? Don’t do it. In the immemorial words of Nancy Reagan, “just say no” to these cyberstalkers.
Furthermore, by posting Content to any public area of the Service, you automatically grant Rapleaf all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Content on the Service by any party for any purpose.
And, in closing, Rapleaf wishes to remind you to play ethically, which is more profitable. Why? Because Big Brother is watching. Because it is the Ancient Wisdom of the Ferengi (see the 285 Rules of Acquisition).