Once upon a time I was a newbie to the world of licensing. My eyes had just barely started to open to the wonders of agreements. Along the way I had signed away rights I probably should have held onto, knowingly or unknowingly. Though I had always read agreements, I rarely thought about negotiating the terms. In fact, I generally believed I was not in a position to negotiate them until I started my licensing career.
And there I was, newly empowered and excited to use my new negotiating skills, sitting at a sales desk at the gym down my street wearing a tee shirt made by my amazing employer that read “I don’t dial 911. I dial 457,” with the revolver of the gun as the center of the screen print. Looking back, that’s the overlooked detail that comes to mind and gives me a chuckle. And, no, that wasn’t licensed. In fact, I’m pretty sure it should have been sold with some kind of waiver.
The sales guy at the gym brought the agreement over, and, of course, I started reading it and discussing my challenges around the language, things like cancellation policies, liabilities, and such. He let me know that these were non-negotiable. Of course, I asked if I could speak with someone who would negotiate with me, to no avail. While I ended up signing the agreement, I did end up arguing my way out of it in the end via a letter in which I expressed both my unwillingness to continue paying for a membership I wasn’t using AND their unwillingness to negotiate at the time I signed it. I may have done that silly thing of suggesting it was signed under duress to boot. Needless to say, I got out of the deal.
Nowadays, it’s more and more common for people to negotiate gym agreements. In a cursory search, I found a handful of articles advising folks to do exactly as I did.
Now, the pesky non-negotiable agreements we run into these days are typically for apps, social media platforms, and software. Sign them or don’t use them. Your choice. And many of them seem to so necessary, especially when they are for work or travel.
But, when it comes to platforms, there is one that really takes the cake. It comes down to this clause:
XXXX SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF XXXX, EVEN IF XXXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In all caps no less…but, did you actually read the agreement? You likely use their service.
Terrifying. I refused to use their service for years. In fact, at one point, I had contemplated taking on one of these “freelance” gigs. Times were tough and if it hadn’t been for that clause, who knows? Maybe that would have been a great side hustle. To be fair, at the time I read it I was interviewing for a big tech company in their licensing department and had read several such agreements.
I’d like to point out that most software agreements are pretty self explanatory and fair. All they really care about is protecting themselves from competition with the key clause stating that you are prohibited from reverse engineering the software. Oh, and they want to be sure that each user pays for the service. I took a look at Google’s today. Not only is it an easy read, but it offers some pretty solid protections for the consumer.
This leads me to one that continues to be subject to lawsuits. It is one we all love to hate and hate to love. Here’s the clause that gives me pause:
Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.
As a licensing agent, I have to say, no way. How can they get away with that when so many companies are born out of those memes you just share with all of your friends? Viral content. Yeah, guess what, per this clause, Facebook, I mean, Meta, owns it. You can certainly contest this in court, but it never hurts to read the fine print. Do I use this platform? I do. Could it impact the rights of our clients at DBG? Sure. Do I think it would hold up in court? Maybe. It depends upon how many dollars they want to throw at the case.
But, as we all know, this is perhaps the least of our concerns when it comes to Meta (if that re-brand actually sticks). It doesn’t much matter how we play with our security and privacy settings, it will never be a safe place. Not for the kids who lied about their age to get on the platform, certainly. And I know it’s horrible for my budget and possibly reputation, depending upon whatever stuff I post, or my friends post, or my friends’ friends post about me. Am I laughing? I wish. But I don’t expect the Facebook companies will ever fully leave my life.
I mean, where will I get all of my quality cat memes? Those are a necessity, not a want.
Ok, now I’m giggling again.