itch.io changed its ToS

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bosinpai
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itch.io changed its ToS

#1 Post by bosinpai » Fri Jun 08, 2018 3:36 pm

Hi,

I noticed that itch.io recently changed their simple and friendly ToS:
https://web.archive.org/web/20180518090 ... rms#rights
itch.io claims no rights over your content. You own it. You can take it down at any time. But, by using this service you grant itch.io permission to use promotional material you have provided for your Digital Content (screenshots, cover-images, videos) on other parts of the site in order to link to or showcase your Digital Content.
to this (unfortunately common) stealing stanza:
https://itch.io/docs/legal/terms#rights
Publishers are solely responsible for the content they upload and distribute on itch.io. Publishers affirm, represent, and warrant that they own or have the rights, licenses, permissions and consents necessary to publish, duplicate, and distribute the submitted content. By submitting content to the Service for distribution, Publishers also grant a license to the Company for all patent, trademark, trade secret, copyright or other proprietary rights in and to the Content for publication on the Service, pursuant to this Agreement. The Company does not endorse copyright infringing activities or other intellectual property infringing activities and violations of may result in the removal of content if the Company is notified of such violations. Removal and termination of accounts may occur without prior notice.

Publishers retain all ownership rights to the submitted content, and by submitting content to the Service, Publishers hereby grant the following:

To the Company, a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the Service, including without limitation for promoting, redistributing in any and all media formats. If you choose to remove your content from the Service, this license shall terminate within a commercially reasonable time after you remove your content from the Service.
To Users, a non-exclusive, perpetual license to access the content and to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service. Users shall retain a license to this content even after the content is removed from the Service.
AFAICT I wasn't notified about it.

I'm quite disappointed.
Is that being discussed somewhere?

Bonus: they didn't update their FAQ which is now quite false:
https://itch.io/docs/creators/faq#does- ... t-i-upload
Does itch.io take ownership of the content I upload?
No. You will always fully own your content. You are free to remove it at any time. You can read more on the terms of use. itch.io just asks for the minimum amount of rights necessary to run the site, such as permission to show your game page and host your game’s assets.
Last edited by bosinpai on Sat Jun 09, 2018 9:32 am, edited 1 time in total.

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Re: itch.io silently changed its ToS

#2 Post by Tempus » Fri Jun 08, 2018 9:41 pm

To my understanding this is saying publishers retain ownership but grant a license to itch.io that allows the site to do all the things necessary to distribute and promote it. Both versions of the ToS that you've quoted state this in different language. The difference is that the second one seems to attempt to cover all the edge cases, such as specifying you can't upload stuff you don't own (and if you do your account may be deleted). It gives them no ability to claim ownership over your work, so I wouldn't call it stealing.

That being said, I hate that the long-form version and think it could be stated simpler or at least explain what each part is and why it's there. For example, I have no idea why "royalty-free" is there. And I imagine a lot of people don't know what sublicensable and transferable license mean.

But yeah, granting a license is not the same as transferring ownership. Further, when you remove your stuff from the service the license is ended within a "commercially reasonable time," whatever that means.
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Re: itch.io silently changed its ToS

#3 Post by mikolajspy » Sat Jun 09, 2018 3:56 am

For me it's a good change, it's pretty standard sentence in many digital stores (I sell 3D assets on some, it's very similar).

It just means, that they officially handle selling part, and are not just a payment/marketing processor/operator.

It means a lot for small devs like me. In my country registering as small business means paying an additional, obligatory high tax independent on income (the same amount every month no matter how much you earn), so with clear license like that I can add my games and fill tax form as "income from copyright" and keep working as unregistered invidual a bit longer and have all paperwork ready in case someone got curious what I do.
Tempus wrote:
Fri Jun 08, 2018 9:41 pm
For example, I have no idea why "royalty-free" is there. And I imagine a lot of people don't know what sublicensable and transferable license mean.
"Royalty-free" means that they won't own you anything over time just for having this license (like royalty-free music or images, where you pay just once and don't share overall revenue with the author; of course revenue share from sales of your game is a different thing).
"Sublicensable and transferable" - they will further license your license to the customers to use the software(game) you made.

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Re: itch.io silently changed its ToS

#4 Post by bosinpai » Sat Jun 09, 2018 5:29 am

Hmmm, there's little difference between:
- owning the copyright (one can do everything with the work) and
- getting blanket permission over a work (one can do everything with the work, only can't claim its theirs).

If you don't think that's a problem, please give me these rights over your creations, I'm interested ;)

E.g. this technically gives them blanket permission to modify and resell our games without paying us.
They probably won't right now, but if they face bankruptcy, who knows what the CEO will do :/
Also, they can "sublicense" i.e. give those rights to other companies - if/when that happens, I imagine how a nightmare it will be to cancel.

Indeed the GAFAM use such terms for convenience, but just because other people do it doesn't make it right, right?
For those I usually think it's less of a problem because 1) selling game is not their business and 2) sorting out legit content would take forever. Neither are true for a specialized website such as Itch.
iotch.io was able to run for years without those closes, I don't believe they are necessary.
But if most people gladly accepts this kind of theft I don't see why they should bother limiting their terms to the minimum.

Let me know if I'm wrong, but otherwise, we might as well go to other, more popular marketplaces...

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Re: itch.io silently changed its ToS

#5 Post by Rastagong » Sat Jun 09, 2018 7:11 am

Hmmm, this is not a reply on the heart of the matter, and I may be mistaken, but I don't think that this has been concealed or “silently” rewritten at all?

You should have received two emails about ToS changes in May! Both are related to the introduction of the GDPR in the EU.
There's an email entitled Updates to our Terms of Service & Privacy Policy from May 25th that I assume all itch.io users should have received, and another one entitled New Publisher Terms of Service, please update your account from May 31st, that has probably been sent only to users with a publisher account, e.g one to publish games.
If you have a publisher account, you should normally have received this email, which explicitly asks you to review the ToS change.

In addition, the ToS page of itch.io does briefly mention when and how these terms changed:
Updated June 8 2018: Reverted changes to Acceptable Use clause added with May 24th update that do not reflect how we review material
Updated May 24 2018: Rewritten for GDPR support, Publisher terms, & Unclaimed Earnings clause
My personal reading, like Tempus' and mikolajspy's, is that they had to be more specific and to cover more edge cases, possibly to ensure that the operations of the site remain compatible within the GDPR framework?
That said, I ultimately agree that this may not be the most “explicit” and informed kind of consent that the GDPR truly requires —I'm not sure that any company has truly managed to offer this level of agency to its users.

Honestly, if you're really concerned about this, I'd just recommend sending a tweet to @itchio or @moonscript (the founder) on Twitter. He's pretty open to discussion, and has been offering clarifications to devs regarding recent changes! As a general rule, the itch.io staff is very receptive to feedback and easy to reach, so you might as well take advantage of this! This will most likely be much more effective than conjecturing on a forum.

(I personally do very much trust them because of this! Like, yeah, you never know how a company can turn out in the long term. But given how much they practically do for small devs, and how reachable their staff is, I'm absolutely certain that any potential problem will always be solvable by reaching out, or in the worst case, by public pressure.)
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Re: itch.io changed its ToS

#6 Post by bosinpai » Sat Jun 09, 2018 9:46 am

I had looked for it in my inbox, missed it because there wasn't "itch" in the title -_-'
Well, just one on the 31st. Changed the thread title nonetheless.

I can't imagine why the GDPR, which is about protecting the user personal data, would enforce services to acquire full rights on whatever we upload with a all-or-nothing kind of clause - let's not confuse everything.

Trust is good but needs be both ways.

I did search for existing discussions on the subject and didn't find anything - where did you see that?

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Re: itch.io changed its ToS

#7 Post by ComputerArt.Club » Sat Jun 09, 2018 11:34 am

Thanks for starting a discussion on this and noticing it.

I definitely think it is always worth questioning and asking whether someone is overreaching with their legal clauses. It is always good to question things, even if there is probably nothing going on. Of course they are going to want to protect their own legal rights first and foremost, but it is up to those using the service to pay attention and question whether, whilst protecting themselves, they have gone too far.

While you can argue that x clause is because of y, sometimes these things are vague enough that they just need to be changed in order to protect those using the service.

For instance, they are asking for the right to "prepare derivative works of", no matter what their reason for asking for this and what they believe they are referring to when they say derivative works, I think this can easily be taken to mean that they have the right to make sequels and prequels of your work. I don't think that that should be considered acceptable. That is overreaching, and whatever type of situation they are trying to cover, they need to adapt the wording to make it more clear that they do not intend to that.
Last edited by ComputerArt.Club on Sun Jun 10, 2018 9:19 pm, edited 2 times in total.

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Re: itch.io changed its ToS

#8 Post by Rastagong » Sat Jun 09, 2018 12:59 pm

bosinpai wrote:
Sat Jun 09, 2018 9:46 am
I did search for existing discussions on the subject and didn't find anything - where did you see that?
Sorry, I wasn't clear at all!
I haven't seen other discussions on this exact topic.
I meant that the founder has been talking with devs about other aspects from their ToS —more specifically, the “Acceptable Use” clause, in light of the recent Steam policy debacle.

My point is that you should definitely feel free to contact @moonscript about this if you're really concerned! And then maybe to report the result here.
bosinpai wrote:
Sat Jun 09, 2018 9:46 am
I can't imagine why the GDPR, which is about protecting the user personal data, would enforce services to acquire full rights on whatever we upload with a all-or-nothing kind of clause - let's not confuse everything.
I definitely have no in-depth of data protection law, ahaha, and this is merely an hypothesis.
But my intuitive reading is that itch.io is listing more exhaustive uses because the former sentence (“promotional material”) is too vague and poorly-defined to represent the way they actually use devs' data? The new sentence is definitely wide but covers more exhaustively screenshots, presentation texts, in-game dialogues that they may use on their blog, on the homepage, etc.

I don't think you're wrong at all for questioning the way they use your data! However, it's probably easier to ask for clarifications directly. They will most definitely reply. :)


My reaction is prompted by the fact that among devs, there seems to be a… strange wariness, or habit to assume the worst from itch.io? And I don't quite understand this sentiment!
Especially since devs never extend this wariness to Steam? Of course Steam generates way more revenue, but ya know, there are so many ways in which it is absolutely awful, in terms of accountability, community, valuing small-scale creators, and ultimately of dependence.
Anyway, I digress but I really, really recommend just asking on Twitter (or even on the itch.io forums!) to get an actual answer, and I guess to report it here afterwards.
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Re: itch.io changed its ToS

#9 Post by Imperf3kt » Sat Jun 09, 2018 1:24 pm

As I understand it, the policy has not changed. All they did was convert simple English, into Legalese.
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Re: itch.io changed its ToS

#10 Post by bosinpai » Sat Jun 09, 2018 6:00 pm

@ComputerArt.Club this is extremely well put,
and @Rastagong in this light I can see how I sounded offensive to itch.io.
(It's indeed common to see a group get bashed at any misstep when they have a Good Guys image. I didn't mean to do that.)

(Incidentally I couldn't find any comparable terms for Publishers at Steam, maybe this is part of filling the tax forms, or maybe they do not require such license.)

I can try and reach them now.

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Re: itch.io changed its ToS

#11 Post by Rastagong » Sun Jun 10, 2018 8:10 pm

No worries at all! And sorry if I was too abrupt myself, I completely understand where you're coming from; it's absolutely necessary to care about publisher relationships and legal terms in general.
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Re: itch.io changed its ToS

#12 Post by bosinpai » Mon Jun 11, 2018 3:22 pm

Those services are decidedly not liking me: I registered a twitter account to try and contact itch - and while I was waiting for the the confirmation mail to arrive, Twitter locked my account. I literally didn't do anything and they locked it for "suspicious activity" - so apparently waiting for their mail is suspicious o_O
I'll see if there's another way to get in touch with itch while I'm getting twitter unlocked, but feel free to contact them directly as well...

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Re: itch.io changed its ToS

#13 Post by bosinpai » Mon Jun 11, 2018 5:14 pm

I sent a mail to support@itch.io - I never could have explained anything in 140 chars anyway ;)
Also pointed that we can't give such rights to e.g. RenPy or CC-* songs we use in our games.

All this reminds me of a similar issue with GitHub changing their ToS about 1 year ago. I think they backpedaled, but I'd need more time to dig into the archives and check what happened precisely in the end. Enough for tonight :)

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Re: itch.io changed its ToS

#14 Post by mikolajspy » Mon Jun 11, 2018 5:48 pm

bosinpai wrote:
Mon Jun 11, 2018 5:14 pm
Also pointed that we can't give such rights to e.g. RenPy or CC-* songs we use in our games.
Yes, we can - https://www.renpy.org/doc/html/license.html#
With the assets you use in game, you need to check all of them separately, some CC licenses usually allow to use it as long as you pack it in game-format archive together with the rest of the game, so it's clearly inseparatable part of the product. Again, better carefully read the license.

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Re: itch.io changed its ToS

#15 Post by Imperf3kt » Mon Jun 11, 2018 8:28 pm

Itch.io changed their TOS from "let us advertise your game on our website" to "by using our service, you agree to allow us to advertise your game by using some of its assets"

I don't see a difference. English, was translated to legalese. Both mean exactly the same thing, the difference is, legalese covers their ass in case somebody tries to sue them for hosting screenshots...

I mean look, its even the first thing in the link:
You own it. You can take it down at any time. But, by using this service you grant itch.io permission to use promotional material you have provided for your Digital Content (screenshots, cover-images, videos) on other parts of the site in order to link to or showcase your Digital Content.
Last edited by Imperf3kt on Tue Jun 12, 2018 11:52 pm, edited 1 time in total.
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