Copyright and "Greedy" Hosts

Does the host's agreement trump the contract you make with the web site?

[ccDan]

Let's say I write an article about widgets.

I let John Doe use the article on his widgets web site in exchange for a link back to my site. I make this agreement exclusively with him to avoid any problems with content duplication.

But, his widgets web site is hosted by a web provider whose service agreement stipulates that the web provider is granted a "royalty-free, perpetual, nonexclusive, worldwide, and unrestricted basis" to use content that John Doe uploads to his web site to "create, for promotional purposes, collective and derivative works that may include some or all of the Content you provide (excluding Emails) and, for promotional purposes, to use, copy, store, modify, transmit, distribute, publicly, display, and publicly perform the Content (excluding Emails) and any derivative or collective works containing or derived from the Content."

Would that include my article? My agreement is with John Doe, not his web provider. So, would the agreement between John Doe and his web provider affect my article as well?

If so, shouldn't John Doe disclose that information to me? If he doesn't disclose that to me, does he open himself to liability if his web provider should use my article for their "promotional purposes" without my express permission to do so?

[Longhaired Genius]

I've only ever seen conditions like that on "free" hosts. Just do your own due diligence and don't bother with people who host their websites on "free" hosts.

[BigDave]

They do not have the right to continue using your work. You had no agreement with them.

If you sue them, they could turn around and sue John Doe for not having the right to give them those rights. Who knows how that piece of the puzzle would work out, but that isn't the part you are concerned about.

[ccDan]

The service agreement referenced was from a "paid" host.

They do offer "free" sites, but also "paid" sites. The service agreements differ, but both contain the particular clause.

I should also mention that the web site pays for use of the article.

[ccDan]

BigDave writes:
They do not have the right to continue using your work. You had no agreement with them.

If you sue them, they could turn around and sue John Doe for not having the right to give them those rights. Who knows how that piece of the puzzle would work out, but that isn't the part you are concerned about.

Thanks! That's the kind of answer I was looking for.

So, the best thing it seems, for myself and John Doe, would be to advise him to use a different web hosting provider, and not use my content until he does.

[VegasRook]

Find a new host. Also stay away from any company that goes outside their realm. The hosting companies job is to host, not try to scam material.

If they want a testimonial--let them ask for it.

As was said, they have no permission to use your material anyway.

[rogerd]

It sounds to me like BigDave is one the money with this one, but, as always, if you want legal advice, consult an attorney who can get familiar with the details of your situation, the specific agreement language, and the laws of whatever jurisdiction applies.

I've make the business decision not to consult an attorney about some issue many times, but I always try to be aware when I'm doing that and weigh the risks.

[whw1]

Ah, I am surprised that the clause you stated. I agree with the above comments. Get a new host. That is ridiculous. The Hosting Service provider’s job is to provide good quality reliable hosting, and try to steal your material with a sneaky clause. My opinion is that any clause that is seen as "bad faith" or "unfair", or not stated clearly, can gets dismissed during any legal proceedings (arbitration or court case).
You referred to free hosting and such. I can't believe that you can’t afford at least $1 a month.

[edited by: rogerd at 1:48 pm (utc) on Feb. 24, 2005]
[edit reason] No links/URLs, please... [/edit]