itch.io changed its ToS

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Meera
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Re: itch.io changed its ToS

#31 Post by Meera » Mon Jun 18, 2018 12:23 am

I'm not particularly adept at legal speak, but I do work in a field that was affected by GDPR. Anything online that allows European traffic has had to comply - that's why a bunch of other sites have updated their ToS, from Facebook to Google to Amazon. This means clarifying what kind of data they're collecting, and what happens to it. That's why there's that clause about them using stuff for advertising purposes. From what I've seen, it doesn't look any different than their old ToS, just updated to word it carefully.

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Re: itch.io changed its ToS

#32 Post by bosinpai » Mon Jun 18, 2018 3:46 am

OK, as I said I messaged privately with @mikolajspy (who agrees itch.io may well abuse this unbalanced contract but thinks we are powerless against this) and @Imperf3kt (who read the wrong ToS). If you agree with them, considering they agreed with me :P
(btw I'd appreciate it if you guys confirmed here as well.)

So far nobody could give me any argument proving that itch.io can't abuse the contract.
More over, itch.io didn't answer despite their history of being responsive.

If you think itch.io is now as bad Facebook or Google, well that's very disappointing, but I have to agree.
If you prefer hoping nothing can happen, rather than contacting them to they publicly clarify, so be it.

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Re: itch.io changed its ToS

#33 Post by dreamfarmer » Fri Jun 22, 2018 10:54 pm

How do you think the ToS is open to abuse? I've read the whole thread and I haven't figured that out, except for the person who believes there's no guarantee they'll honor the limitations of their ToS -- which, if you worry about that, the language is completely irrelevant in the first place.

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Re: itch.io changed its ToS

#34 Post by bosinpai » Sat Jun 23, 2018 11:54 am

They ask we grant them "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".

This is a broad license, broader than necessary.
They are legally entitled to e.g. reuse your assets, or make a game sequel, or censor part of the story, without asking.
It would go against their image to do something this crass. A plausible scenario for abuse would be them being bought by an assets company, or them getting low on funds ("this is recession") and attempting to salvage the company anyhow.
I wish they asked a more reasonably license, with explicit scope/limitations.

That seems straighforward to me, is there something in this thread that was confusing you?

(still no answer from itch.io by the way)

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Re: itch.io changed its ToS

#35 Post by Jackkel Dragon » Sat Jun 23, 2018 7:49 pm

That line of the license doesn't mean what you say it means. I believe someone else already did it term-by-term, so I don't feel inclined to do so again. Instead I'll just focus on the claims:

(reuse of assets): Based on the quoted line, the reuse of the assets means they will create different versions of the screenshots/logos you provide the system for different dimensions. (Thumbnails, etc.)

(make a sequel): This isn't covered at all in the quoted line. The closest related thing in the quote is that they create derivative works of the screenshots/logos you provide, which they are only allowed to use for promotion of the game on the site itself.

(censor part of the story): Not covered in the quoted line at all. Based on my memory of the rest of the terms, they are not allowed to modify the game files (even if they were able to). If they deem your content unacceptable, it is simply removed from the site unless you change it yourself.

As others have said, this is actually pretty basic for legal terms and is less dense and/or risky of a set of terms than other sites with the same purpose. And the scope IS limited: the "including without limitation" line means that you cannot limit their ability to do the following actions.

I wouldn't expect a comment from itch.io. It's a fairly clear set of terms already, and as a company they likely have enough people trying to get their attention that they either won't see the message or will dismiss it as someone trying to quote mine them into a corner (and thus a troll to their eyes). Even if someone in the company that shared your view saw the message, the cost of paying a lawyer to re-legal the whole thing to appease people, cover their bases, and still keep GDPR in mind is likely going to cause this to be considered a low-impact issue.
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Re: itch.io changed its ToS

#36 Post by bosinpai » Mon Jun 25, 2018 3:05 pm

Well it's depressing to see creators pay so little attention to their rights.

"they need some of the rights" but it's overreaching - "other people do it too" but said other people are rated F on e.g. tosdr.org - "related to the GDPR" while this has nothing to do with privacy - all of this already discussed.

Also it's nice and all to repeat "no covered in the quote line", but I'd rather be pointed e.g. where exactly they can or cannot modify the game files.
"prepare derivative works of" is very broad and includes modifying the game files.

Now I would suggest we stop trying to shoot me the messenger :P

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Re: itch.io changed its ToS

#37 Post by Jackkel Dragon » Tue Jun 26, 2018 12:15 am

Whether or not we creators deserve more rights, this is not an uncommon or particularly heinous terms of service. Unless you would also say that YouTube, GitHub, Game Jolt, and GOG are also trying to steal our content for their own purposes, it's really hard to take this seriously. To anyone who has taken the time to actually read these terms, this seems like fearmongering over a change in diction that was probably only done because a lawyer told someone at itch.io that their terms were unenforceable.

Relevant segments of the mentioned sites' terms, for reference, are below. If you think there is some important distinction to be made or have actual evidence for your claims, feel free to refute these examples.

YouTube:
For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
GitHub:
If you set your pages and repositories to be viewed publicly, you grant each User of GitHub a nonexclusive, worldwide license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality (for example, through forking).
Game Jolt
By displaying, publishing or otherwise posting any User Content on or through the Service, you hereby grant to Game Jolt and its successors and assigns a perpetual, non-exclusive, worldwide, fully-paid, royalty free right and license to use, reproduce, distribute, make available, publicly display, publicly perform, transmit, host, broadcast and stream such User Content.
GOG:
As far as we and you are concerned, you own any User Generated Content but we need you to give us some limited rights over it so that we can actually transmit it through GOG services. So, we ask you to give us a non-exclusive, irrevocable licence to use, modify, reproduce, create derivative works from, distribute, transmit, communicate and publicly display/perform your User Generated Content in connection with GOG services.
As far as "not covered in the agreement" elements go, we would be here until the end of time if we went over everything not included in a specific legal document such as this. Terms and conditions agreements are specific, not about defining every possible interaction. If it's not covered, any good lawyer will be able to defend the rights you didn't sign away, because you never signed them away. For a company to act otherwise is outright illegal, and should be called out and acted upon. Saying "oh, but they could do X that wasn't in the agreement" is just working on hypotheticals based on an assumption the company is trying to get you.

As much as I disagree with almost everything you say and your inability to take the time to think of what you are claiming and provide an actual logical argument that is based on more than misunderstandings and gut feelings, I'm not trying to flame you. I'm trying to make you understand why everyone thinks you're going nuts and learn if there is any actual issue here, or just a failure in communication. If you can show me evidence that itch.io is doing something shady with this change and point to how you know, I'll try to understand that viewpoint.
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Re: itch.io changed its ToS

#38 Post by bosinpai » Thu Jun 28, 2018 6:28 am

Yes, these terms are common. However, this doesn't make it good per se (e.g. harassment is pretty common too..).
You can check sites such as https://tosdr.org or https://tosback.org/ for what people with legal background wrote about those.
Note that GitHub's ToS is more restricted, in particular following a user backlash in early 2017.

A good layer may help indeed. However lots of us can't afford a lawyer and it's far safer not to need one, e.g. by having the terms explicitly limited in scope.

I'm not saying itch.io is going to do anything shady. I say they are now able to.

"your inability to take the time to think of what you are claiming and provide an actual logical argument that is based on more than misunderstandings and gut feelings, I'm not trying to flame you."

Holy cow, now I wonder what it would be like if you really flamed me. LOL!

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Re: itch.io changed its ToS

#39 Post by Rastagong » Thu Jun 28, 2018 9:32 am

Hey so, I didn't want to keep replying and give unwanted attention to this nonsense, and I assume other posters thought as much, but since you're still tweeting @itchio and trying to worry devs, I'll reply one last time.
bosinpai wrote:
Thu Jun 28, 2018 6:28 am
Yes, these terms are common. However, this doesn't make it good per se (e.g. harassment is pretty common too..).
You can check sites such as https://tosdr.org or https://tosback.org/ for what people with legal background wrote about those.
Note that GitHub's ToS is more restricted, in particular following a user backlash in early 2017.
It's funny that you insist on comparing itch.io to Facebook or Twitter, when it would be much more accurate to compare these terms to GameJolt's, Unity Marketplace's, and countless similar services of the same scale. But I guess it's easier to use this baseless comparison to frighten devs without any reason. :|

As others have explained, the possible uses of the license we grant are already limited:
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.
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,
The emphasis is mine: the bolded passages clearly limit the reach of the license granted to itch.io.

I even looked at the analysis of copyright licenses on tos;dr and they do not say what you pretend they do.
If you look at the discussion threads regarding copyright licenses on their mailing list, you'll notice that both the participants and the founder (Hugo Roy) are much more nuanced than you are, and do not believe that granting a license is inherently negative.
On the contrary, they say that only without explicit limits can licenses be dangerous. That's all. Nothing more.

For instance, in the thread discussing the copyright license from Twitter's terms of service, rated as “bad” on the site, Hugo Roy explains:
I would say that the most worrying aspect of this license is that there
are absolutely no limitations to this license. By limitations, I mean
something like SeenThis (Twitter competitor) "autorisations permettant
le bon fonctionnement du système" or Dropbox's "These Terms do not grant
us any rights to your stuff or intellectual property except for the
limited rights that are needed to run the Services". Dropbox also
documents in their privacy policy why exactly and with whom information
is shared.
With such a broad scope in the copyright license,
Twitter effectively becomes owner of the data (tweet, meta information
in the tweet, pictures tweeted; etc.) and can transfer or sublicense to
third parties.
Hugo Roy very clearly acknowledges that the problem comes from the absence of limits, and from Twitter's willingness to share data, not from the license itself.

On the contrary, if you look at the thread discussing the license granted to Soundcloud, you'll find it rated as “one of the best” because of explicit limits:
I like the fact that:
  • the license to soundcloud itself is very limited to the hosting, and to the services that they provide;
  • the content is licensed "horizontally" to all other users of the platforms according to the parameters set forth for each of the songs (terminate automatically when you remove)
I'm not saying that itch.io's license is as good as Soundcloud's, in fact there's honestly room for improvement.
However, the problem is not that we grant “a worldwide, non-exclusive, royalty-free” license to itch.io. That's standard, and may be required in certain cases —even tos;dr acknowledges as much, contrary to what you imply.

You may ultimately have a point because the license could be slightly improved, but... not on the scale you're implying where itch.io could just steal everyone's content. That's just false. There's exactly zero basis for what you've been implying from the very beginning.

And it's no use to tweet at them to rewrite the clause, they won't do it.
Honestly, please, please stop doing so, I feel awful for ever telling you to contact them. I only meant they could offer clarifications, nothing more. Please don't annoy their community manager with this thing, and stop encouraging people to harass them, it's utterly useless, and I'm not sure what to say anymore.

And lastly, I said so earlier, but again:
It's incredibly short-sighted to ignore the numerous, practical actions of itch.io towards devs, like open revenue sharing and manual curation to focus on hypothetical developments that could perhaps happen if itch.io turned evil.
I'm not saying that legal terms don't matter, but like… In terms of relationship with devs, I'm not sure itch.io is the store you should be most worried about. It's incredibly weird to focus on hypothetical developments that they're most unlikely to commit in the first place.

(I personally intend not to reply anymore at all from this point onwards.)
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Re: itch.io changed its ToS

#40 Post by bosinpai » Thu Jun 28, 2018 3:05 pm

We again agree that the terms could be better limited (in particular better than refering to a vague undefined "Service"), and it's all good.

I note you changed from:
- contact them, they're responsive, it's no use conjecturing here
to:
- by sending 1 mail & tweet, plus a ping since they're not so responsive, over 3 weeks, I "harass" them and should stop.
When can there be actual discussion?

I can understand that this thread gives an unnecessary bad aura to itch.io.
Since this discussion has been rehearsing the same points for a while we may stop this discussion.
(I don't mean we should lock the topic, that would have the adverse effect)

I'm always open to PM if you want to discuss this further. Never deny yourself the ability to change your mind :)

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Re: itch.io changed its ToS

#41 Post by dreamfarmer » Fri Jun 29, 2018 4:08 pm

No, I'm not really confused. I do feel very strongly that an overlooked part of that TOS is the fact that the license ends as soon as you decide to remove your stuff. Many other ToS I've seen the internet go up in arms over doesn't have that basic restriction, instead insisting on some sort of perpetual and irrevocable license. Those are worth fighting.

I am very aware of my rights as a creator. I successfully reclaimed rights to a novel from a major publishing house after they violated the terms of our contract (which was about the only way I'd have been able to do so, given those contracts). Seeing a ToS that lets me completely revoke a grant of rights at will, with no consequences or cost, seems pretty sweet in comparison.

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