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(Archived) Evernote can publish my content without my permission??


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I'm a technical consultant who visits multiple clients on a daily basis, and records information as necessary in a marble notebook which I carry around with me. My notes include the time I make it onsite, the time I leave, handwritten network diagrams, server names, and credentials (usernames and passwords) for servers, routers, firewalls, etc... As a new iPad owner, I was looking for a product that would allow me to use the iPad to enter that information in a way which I can organize and search for it and even be able to synchronize it so its accessible by PC. A friend suggested Evernote, so I downloaded the app today (haven't had a chance to look at it yet) and decided to read the terms and conditions to see if there were any hidden terms which grant them license to my content, since it didn't makse sense for a company to offer a free service such as this without generating revenue somehow such as selling my data to market research companies or something. What I found shocked me!

In paragraph 5 it states that we give license to Evernote to display, perform, and distribute my content! There is no way on earth that I could ever utilize this service, it would leave me open to Evernote publishing private and sensitive data! If the product met my needs, I would have had no problem even paying for the service but the terms and conditions grant evernote the right to do with my data what they want. I feel sorry for the people who never bother to read the terms and find out the surprise later on.

I have no idea if in practice they actually do this or whether you have control over what they publish or not, but that clause grants them the right to do whatever they want with your data regardless of any setting or preference you set. The bottom line is it's there and is a disaster waiting to happen for anyone who expects the privacy and security of their data.

Evernote: You won't have me as a customer as long as you have that clause in there. And no, the purpose of that clause isn't to protect you in case of a legal subpoena. There is standard legalese to protect you from that, and this is NOT it.

Part of Paragraph 5:

In order to enable Evernote to operate the Service, we must obtain from you certain license and other rights to the Content you submit (so that our processing, maintenance, storage, technical reproduction, back-up and distribution, and related handling of your Content doesn’t infringe applicable copyright and other laws). Accordingly, by using the Service and posting Content, you grant Evernote a license to display, perform and distribute your Content, and to modify and reproduce such Content to enable Evernote to operate and promote the Service. (You also agree that Evernote has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.) You agree that these rights and licenses are royalty free, irrevocable and worldwide, and include a right for Evernote to make such Content available to, and pass these rights along to, others with whom Evernote has contractual relationships related to the provision of the Evernote Service, solely for the purpose of providing such services, and to otherwise permit access to your Content to third parties if Evernote determines such access is necessary to comply with its legal obligations

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The post you reference does NOT address my concern.

1. The clause is written so NO MATTER WHAT, Evernote retains the right to publish my content to "operate and promote the service". That is very different from a statement indicating your content remains private unless they are required to by law enforcement as a result of a criminal investigation.

2. No matter what you, or anyone else says they "DO" with your content, a legal agreement is a legal agreement.. and that legal agreement says they can do whatever they want with my content, PERIOD.

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While we can't give you individual legal advice, the text you highlight is pretty standard language for any hosted web service. If you don't give us permission to "display, perform and distribute" your content, then our web servers would not be able to transmit that content to your web browser.

We need to have legal language that permits us to receive your data, store it, and then transmit it back out again to you, and to anyone that you share/publish to.

If you do a web search for snippets of that sentence, you'll see that boilerplate a lot.

E.g. http://www.google.com/search?sourceid=c ... tribute%22

Comes up with 170,000 hits for me.

The rest of the ToS and Privacy Policy includes conditions elaborating on when/how we'd use your data. E.g. "solely for the purpose of providing such services", etc.

But, again, I can't offer you personal legal advice on your individual needs. (IANAL, etc.)

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Here's a gem from the Google Apps TOS (Google Apps provides, among other services, gmail with a custom domain):

Google reserves the right to syndicate Content submitted, posted or displayed by you on or through Google services and use that Content in connection with any service offered by Google.

So I guess this applies to every email I send. I don't see anything in the Google TOS modifying this; although I'm sure the privacy policy says something.

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Yeah, that does sound virtually identical to the T&Cs of most other web-based services I've looked at, as it's basically stating that they have the right to transmit your data across the internet, display it in your web browser, etc. It's always good to read the T&Cs for anything that may be handling sensitive data, but if you read the EN T&Cs in detail you'll see that the clause you draw attention to is followed by various points about the fact that the content will only be shared if you specifically grant that right, as in the case of 3rd party services that you use and so on.

As for the "it's free, where's the catch" argument (which I agree is something you should always ask of anything that appears to be free of charge!), in the case of Evernote the "catch" is that you'll probably find the service so useful that you'll end up paying for the premium version (the "Freemium" model). They also have a little advertising box in the corner of the screen if you're a non-subscriber (I think, unless they've changed this since I used the free version) so they make a bit of money off that too.

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  • Level 5*
They also have a little advertising box in the corner of the screen if you're a non-subscriber (I think, unless they've changed this since I used the free version) so they make a bit of money off that too.

It's still there (says the freeloader).

~Jeff

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  • 8 months later...
While we can't give you individual legal advice, the text you highlight is pretty standard language for any hosted web service. If you don't give us permission to "display, perform and distribute" your content, then our web servers would not be able to transmit that content to your web browser.

We need to have legal language that permits us to receive your data, store it, and then transmit it back out again to you, and to anyone that you share/publish to.

If you do a web search for snippets of that sentence, you'll see that boilerplate a lot.

E.g. http://www.google.com/search?sourceid=c ... tribute%22

Comes up with 170,000 hits for me.

The rest of the ToS and Privacy Policy includes conditions elaborating on when/how we'd use your data. E.g. "solely for the purpose of providing such services", etc.

But, again, I can't offer you personal legal advice on your individual needs. (IANAL, etc.)

Could you please explain why you need to be the proprietor of our contributions in order to display our contents? "your Contributions automatically become the property of Evernote without any obligation of Evernote to you and (f) you are not entitled to any accounting, compensation or reimbursement of any kind from Evernote under any circumstances." Surely you can only acquire permission to "display, perform and distribute" our content, without owing it...

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You're putting words in our mouth.

This word that you're suddenly bandying about - "own" - is simply not there.

However, as Dave said, we do need to be able to alter any data you place into our system into a manner that is suitable for transmission across the internet, for one. And then, once altered, we then need to distribute it to our servers. And then back to you, whenever you call for it.

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  • Level 5*

The other word, "proprietor" also puzzled me, as I had not seen it mentioned either, and it's not in the TOS. I'm not sure what it means in the context of the discussion.

~Jeff

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You're putting words in our mouth.

This word that you're suddenly bandying about - "own" - is simply not there.

However, as Dave said, we do need to be able to alter any data you place into our system into a manner that is suitable for transmission across the internet, for one. And then, once altered, we then need to distribute it to our servers. And then back to you, whenever you call for it.

Enricc is referring to a different section of the ToS, which does say that some types of content submitted to Evernote become Evernote's property:

By submitting to Evernote any ideas, suggestions, documents and/or proposals through the “Contact Us” interface or otherwise (collectively, “Contributions”), you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (:( Evernote is not under any obligation of confidentiality, express or implied, with respect to the Contributions; © Evernote shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Evernote may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Evernote without any obligation of Evernote to you; and (f) you are not entitled to any accounting, compensation or reimbursement of any kind from Evernote under any circumstances.

Clearly, this section is intended to refer to suggestions for features that people make through the "contact us" interface. However, I agree with enricc that the "or otherwise" language is sloppy and troubling. Conceivably, EN could argue that this language makes it the owner of information "submitted" through the EN web interface, and hence the owner of all "ideas" contained in everyone's synced notes. It would be better for EN to amend this section to take out the "or otherwise" language and put in something more specific. Nevertheless, it's silly to get worked up about this particular clause, since EN is unlikely to ever take that position, because (a) it would cause a lot of bad publicity; and (B) they would face an uphill battle to interpret the contract in a way so contrary to a user's expectations.

Also, interpreting the above clause to include content in notes would contradict the following additional passage in the ToS - which provides that any content submitted through "the service" is never owned by EN:

As indicated above, you retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Service. Other than the limited license and other rights you grant in these Terms of Service, Evernote acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content that you submit, post, store, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

So the first clause above must not include content submitted through the "service." It probably does include content submitted on these forums, though.

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  • Level 5

This issue is a classic example of how lawyers are destroying the American entrepreneurial spirit.

You’re trapped in a room with a terrorist, a serial killer, and a lawyer.

You have a gun with two bullets.

What should you do?

Shoot the lawyer.

Twice.

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Ahem...

Another cloud service - Google Doc's Terms of Service:

11.1 By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

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Ahem...

Another cloud service - Google Doc's Terms of Service:

11.1 By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

You're right, it is not different in term of right of distribute, wholly or partially, whatever posted, without having to pay any royalty. However, this is still different from property, which normally imply the right to sell and make profit from whatever is under our property. The right to property is one of the key pillar of our society, and most battle are fought in its name. I find it odd that Heather point out that the word "owned" in not there, as if propriety could have a different meaning that ownership. I understand this is a far fetched worry (in the sense that it is unlikely Evernote would want to exercise their "propriety right' is any other way then distributing and posting. However it would be wise to amend this session if the intention is not there, as it is worrying to some.

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You're putting words in our mouth.

This word that you're suddenly bandying about - "own" - is simply not there.

However, as Dave said, we do need to be able to alter any data you place into our system into a manner that is suitable for transmission across the internet, for one. And then, once altered, we then need to distribute it to our servers. And then back to you, whenever you call for it.

pro·pri·e·tor (pr-pr-tr)

n.

1. One who has legal title to something; an owner.

2. One who owns or owns and manages a business or other such establishment.

I am afraid that's what proprietor means. There is such a think as intellectual property, and some high profile battles have been fought around it, the most recent that on Facebook, well portrayed in the film Social Network. I think it would be advisable for Evernote - which is after all an immense database of ideas - to clarify their position in this respect, as it might scare off a large number of people who are not prepared to take the risk.

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Yes, but you were using the word proprietor in regards to a section of the ToS where it isn't relevant.

Everything you post on these forums, we can do with whatever we want.

Everything you post on our blogs, we can do with whatever we want.

And, for that matter, anything you put in a Public Notebook, and then submit to us via our Contact form, Forums, blogs, Twitter feed, etc, as "Hey, look at this cool thing I did with your software", we can post and show other people.

(Again, I am not a lawyer, but that's what the proprietorship "section" says, which *is* just a section in and of itself). But the word "own" specifically is not there. We're not into stealing your data. We honestly don't care what you've got in your account. Write the next best seller, keep pictures of your favorite cats, or keep your plans for world domination. That's your bag.

If some government entity cares, however (because we hear they really love cats), and they have a subpoena, then we need to get involved. (That's in our ToS too.)

As we have said, this is a very common ToS for every cloud service. If you're scared by ours, then do not use any cloud service.

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