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The WordPress Terms of Service, Explained.

November 30, 2009

This is the first substantive post for #law tag.  It seemed appropriate to give a simple rundown of the agreement I had to consent to in order to start this blog.

The WordPress Terms of Service are simple.  [For a comparison, check out the Blogger Terms of Service which incorporate several other agreements and are written in much worse legalese].  Below, I will take you through the provisions, one by one:

The Gist: In this section, Automattic, Inc. (the company which runs WordPress.com) lays out what it thinks are the basics of the terms.  The section acts like an informal preamble and likely has little legal effect.  In case of a dispute over the other terms, it might be used to figure out the intent of the parties.  This excerpt, for example, makes it sound like the user retains all the copyrights to his content, though that issue isn’t addressed in the more formal provisions:

“Our service is designed to give you as much control and ownership over what goes on your blog as possible and encourage you to express yourself freely.”

The Terms of Service:  The first paragraph basically says that the terms apply to all of the services WordPress provides.  It also incorporates “all other operating rules, policies,… procedures” they may add later and their Privacy Policy.  The second paragraph requires users be at least 13 years old.

Your WordPress.com Account and Site. This section says that if someone gets your password or otherwise hacks your account, it is your responsibility.  It prohibits you from representing yourself as someone else, and allows WordPress to change anything that may cause them liability.  It also says Automattic is not liable for any of your actions.

Responsibility of Contributors. You are responsible for your content and any harm it may cause.  This means you have not stolen the content [from the copyright, patent, trademark holder, or your employer], you aren’t violating any other agreements by posting the content, and you’re not uploading viruses, spam, porn, libel, hate or fighting words.

This section is significant:

“You grant Automattic a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Automattic will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.”

The section above basically says that WordPress can repurpose your content in any way, so long as it does so to promote your blog.  Even though you are giving up some usage rights, here will probably benefit you because WordPress probably has more reach than your network [at least thats true for me]. 

The section above also makes clear that anything you delete, might never be deleted.  This could have important implications if you ever post something libelous or infringing on a copyright, then later try to take it down.  Once it is on the internet, it might be there forever [i.e. in the Google Cache].

Fees and Payment. This is some basic information on the pay services you can sign up for and the way they will be billed.  Since I signed up for the free services only, I glossed over these parts.

Responsibility of Website Visitors/Content Posted on Other Websites.  These sections are interesting.  They addresses the reader, rather than the person signing up for the blog.  The reader of a WordPress blog never clicks to agree to these terms, so it’s hard to know their legal effect.  These sections basically say that Automattic hasn’t looked at all the WordPress content and linked content and readers should be cautious and report misuse of WordPress products.  Automattic also disclaims responsibility for content.

Copyright Infringement and DMCA Policy. Having already told its bloggers that they cannot, under the terms of use, infringe on ownership rights, this section tells readers to report bloggers if they suspect infringment.  It also gives WordPress the power to remove content, and suspend accounts.  [DON’T STEAL!]

Intellectual Property. Blogger’s have no right to Automattic property, including trademarks and graphics.  I hope I am not infringing by using the WordPress name over and over here.

Changes.  WordPress can change the agreement at any time.  The user has to check for updates.

Termination. WordPress can cut your access at any time, for any reason.  You can get out of the agreement by cancelling your account.  If you have pay services, they can only terminate for a material breach thats uncorrected after 30 days.

Disclaimer of Warranties. There are no warranties.  But there is a joke.  “If you’re actually reading this, here’s a treat.”  I don’t know what, if any legal effect a joke inside a contract has.

Limitation of Liability. WordPress won’t pay for special or incidental damages, the cost of substitute products or services, the loss or corruption of data, any amounts over what the blogger paid to WordPress.   This might vary by jurisdiction.

General Representation and Warranty. You agree to follow the privacy policy, the Terms of Use, and all laws and you will not infringe on the intellectual property rights of any third party [AGAIN, don’t steal].

Indemnification. “against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.”  Pretty all-encompassing.

Miscellaneous. The agreement can only be ammended if you get a rep from Automattic to sign the revision, which seems unlikely.  There is a choice of laws provision, so if you do sue them, or they sue you, the court will apply California law.  And a choice of venue, so suits must take place in San Fransisco (unless the suit isn’t for money), but that is after a required arbitration.  You can transfer your rights under the contract as long as the person you transfer to accepts the agreement.  Automattic can transfer without any conditions.

Whew!  All done.  There are a lot of potential issues here, but I will leave those for another day.  Here, the purpose was just to explain the terms, not to analyze them.  Interestingly the WordPress terms are apparently enforced by an automated program which can lead to some headaches.

[Just a note, I use WordPress and Automattic interchangeably, though I probably shouldn’t have.  Automattic is the company with whom the blogger is entering into an agreement]

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