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Terms and Conditions

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Biletsky Law - Terms of UseAlthough you may not be aware of it at the time, by visiting or using many websites and applications you may be agreeing to specific terms and conditions set by the website or application that you are using. These agreements may have different names such as Terms of Use, Terms and Conditions, Code of Conduct, User Agreement, and so on. Despite the different names, each of these agreements are meant to set the conditions for your use of the service and to also provide the owner with protection from liability.

So what’s in these agreements? Besides the names of these contracts, these agreements come in many different variations of length and complexity. Generally speaking, the more interactive the website or application is, the more terms that will be contained within the agreement. Also, what type of content the website or application hosts heavily influences the terms that will be in the agreement.

Keep in mind while reading these sections that the purpose or content of the provisions in these agreements are usually written to completely prevent any kind of liability on the owners part. In some cases, these agreements can be so over broad that they may end up being unenforceable. Regardless of the validity or enforceability of these provisions, some basically throw in the kitchen sink hoping that the agreement will be enforceable.

Introducing the Parties

Often, these agreements start out by defining who you are and who they are. Some of these agreements will use “We” and “You” while others will use more formal language such as “User” and “Company.” Regardless of the way that they state the party names, they are separating themselves from the rest of the world and considering anyone who uses or accesses the website or application to be considered the other party.

Also, there are certain services where access is based on a subscription. For these websites or applications, a further distinction between the mere user and a member may also be brought up.

What You Can’t Do

Another provision of these agreements limit what you are allowed to do on the website or application. These lists can go on for pages and include everything from refraining from posting malicious or illegal content to prohibiting hacking, spamming, soliciting, and other actions. These provisions help the owners to have the argument that regardless of the kind of content that you posted, they had previously prohibited such content and should therefore not be held liable.

Disclaimers

A section that could go on for pages are the “Disclaimers” sections. Depending on the use of the service, these disclaimers attempt to reduce or eliminate the owner’s liability for pretty much everything. Some provisions will disclaim any kind of “warranty” that the product or service may come with while other provisions limit what type of remedies you may be entitled to.

Further Protection from Liability

Depending on what type of product or service the website or application is offering, users may have the ability to post any type of content. This can pose a major problem for these websites as everything from stolen property, defamation, child pornography, and malicious content could be posted.

When the laws and regulations surrounding the internet were first evolving, certain laws  such as Section 230 of the Communications Decency Act of 1996 were passed which aimed to protect certain service providers from liability. In order for these kinds of services to be able to be protected, service providers must meet certain requirements. Some of these requirements allow the owners of certain content to be able to contact the owner in order to remove content that is being used without permission or that which is offensive.

And More Boilerplate

These types of agreements can sometimes be filled with endless legal jargon and repetitive clauses meant to ensure that the owners are protected. While at first glance these agreements may seem to limit any hope you have of getting out of the agreement, that may not be the case. Although within the mountains of boilerplate there may be “severability clauses” which allow the rest of the agreement to be enforceable if something is found to be invalid, the terms which are often found to be invalid are usually the most one-sided ones.

For more information on Terms and Conditions documents or to have one prepared for your website or application, contact Biletsky Law.

Streaming Issues

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The way that people consume media has been evolving throughout the 20th century. The advent of commercial radio in 1920 followed by the first television station in 1941 were seen as milestones in the evolution of entertainment. Fast forward to the second half of the century and the evolution of our media consumption has evolved at an unprecedented rate. Radio and phonographs evolved to audio cassettes which evolved into 8-tracks and eventually compact discs. Terrestrial television morphed into cable and satellite, which was eventually recorded onto VHSs, DVDs, and BluRay discs.

Even the 21st century has made a leap into a new format which was not even conceivable until recently. In 2000, the way that music was being consumed drastically changed as a result of downloading services such as Napster, Kazaa, and Limewire. From that point on, the digital download started taking a larger foothold in the marketplace of the music industry. Within just a few short years, as personal computers and internet capabilities advanced, streaming services began to flood the marketplace where downloads had just recently taken over.

Nowadays, high speed internet delivers unlimited steaming capabilities right into our hands, anywhere in the world. Streaming media still continues to evolve with resolution and quality constantly reaching new levels. But with anything new, comes new problems. The earlier years of internet media and in particular, downloadable content, brought a new wave of piracy into the world. Copyright infringement soon became as easy as the click of a button. While the music and motion picture industry are constantly battling to thwart online piracy, streaming media has not only caused those industries new headaches, but has also created these headaches for others.

Take for example some of the recent sporting events that have taken place. On May 2nd, the world watched the “boxing match of the century” featuring Floyd Mayweather against Manny Pacquiao. Pay-per-view orders of the fight in the U.S were around $100 per order. The revenue earned from just the video on demand sales sky rocketed to reach record breaking figures. But it wasn’t just the paying or legally watching customers who were able to view the fight.

In the beginning months of 2015, well known and easy to use live-streaming applications have started to transform people’s ability to transmit content around the world, live. While the purpose of these applications are to facilitate the distribution of user made content or to broadcast certain events, these applications are more commonly being used to distribute the content of others illegally. HBO and Showtime, the co-producers of the Mayweather/Pacquiao fight, had done all they could to attempt to eliminate the possibility of people in the crowd streaming the fight for free. Other live-streaming concerns include movie premiers, sporting events, music festivals, concerts and other pay-to-view events.

With the spread of the popularity of these types of applications, it is difficult to see how content producers will be able to keep their content from being distributed for free. But, going back to the beginning of this article, this isn’t exactly the first time that these content makers have had to deal with this issue. Starting with programs such as Napster in 2000 and torrent downloading software thereafter, content producers have been in this struggle for a while.

Perhaps most hardly hit has been the music industry. Albums featuring 10-15 songs were at one point able to get a premium sale price of $20 per unit. With the explosion of downloading software, the business models have had to shift and now iTunes sells songs for just 99 cents and streaming sites offering music for free.

But the music industry hasn’t collapsed because of this, and in fact, new artists that would never have been known are now starting to thrive due to the free distribution of their music which has allowed consumers who would not have usually purchased their music to become fans. Where the future of streaming content goes is anybody’s guess, but what impact it has on the entertainment industry is up to the consumers.

For more information about the legal issues involved in streaming media, contact Biletsky Law.