This Post Not Made In Chrome

David Loschiavo   As I was writing this article, I also responded to a number of comments that were made here and on other blogs. I have added the major responses to the end of this article.

If you're like [me and] every other geek, you were one of the many people who downloaded Google Chrome within minutes of it's 3:00PM EST release on Sept. 2, 2008. There's no doubt about it -- Chrome is ridiculously faster than Firefox and IE. But you, like virtually every computer user out there, probably didn't even bother to gloss over the Chrome Terms of Service:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. 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.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.

Section 1.1 defines services:

Your use of Google's products, software, services and web sites (referred to collectively as the "Services" in this document and excluding any services provided to you by Google under a separate written agreement) is subject to the terms of a legal agreement between you and Google.

Since Chrome is a Google product/software, then it is part of the "Services". The content you post to any site is thus subject to Section 11 licensing because the content you post is something "which you submit, post or display on or through, the Services".

Unlimited Reuse of Content You Create. By posting anything (via Chrome) to your blog(s), any forum, video site, Myspace, iTunes, or any other site that you use, Google can use your work without paying you a dime. This doesn't just apply to Google sites like Blogger, Youtube, Gmail. It applies to everything you pass through Chrome. Google can take your submitted content and edit and reuse it all they want, as long as they do so in connection with Chrome (“Look what people are doing with Chrome!”). On top of that, you're also claiming that you have the power to grant these rights.

Work for Hire. When you attend a university, students get their class credits and the university typically gets copyrights to any writings and patent rights to any research and inventions. Similarly, your employment contract probably requires you to sign away all rights to IP you create during work hours (see the "work for hire" doctrine). This often extends to anything that uses your employer’s resources, and even anything created off hours related to the employer's business. In essence, many content creators and inventors (including news writers, artists, copy editors, musicians, researchers, lab techs) cannot legally agree to Chrome’s ToS because they'd probably be in breach of their employment/student contracts. The people who work for Conde Nast (Wired, Arstechnica), TechCrunch, Gawker, any of the other big web publishers, or a university research lab probably can't agree to the Chrome ToS because these kinds of positions usually don't have the right to give a license to the intellectual property (“IP”) they produce. However, this does change slightly based on jurisdiction; under German IP law, there are a number of rights that creators cannot give up contractually -- the courts hold those provisions unenforceable.

On a side note, you probably can't use your company or school email with Chrome, because your company probably exclusively owns your email, and you can't give away a license to something you don't own. You would also be in violation of the Chrome license because you also can't make representations to Google that you have the power to license this IP if you do not.

Why Care? Aside employment and student agreements, there are other reasons why this problem is noteworthy. A number of people have argued along the lines of “who cares about my forum comments?” This article is not intended to help protect your web comments. Many forums, aggregators, and blogs already declare such posts in the public domain (so Google, or anyone else, can probably already do whatever they want with your comments). This is cause for concern when:

• some band posts their audio to iTunes, Myspace, or Amie Street;
• a 3d artist posts their models to one of the many model sale sites;
• a web designer or administrator uses a web IDE to mod some code; or
• anyone in business to business sales creates an online brochure for a client using a web app

In short, this is also cause for concern any time you use Chrome for commercial reasons. With more and more apps being shifted into web browsers, this is almost like MS claiming that it gets a license to any document created or edited in MS Word, Powerpoint, or Excel. What if MS claimed a license to patents, trademarks and copyrights of any software designed created with Visio or Visual Studio? What if Autodesk claimed a license to every 3d model you made in Maya or AutoCAD? What if Adobe claimed a license to everything made in Photoshop? We have to refuse to accept these ridiculous terms in licensing agreements. For the record, Microsoft actually tried this with MSN messenger years ago – they claimed an irrevocable perpetual license to all IP that passed through MSN messenger, and the net basically revolted. The same thing happened with AOL and AIM.

If you're like me, you use your browser for a lot more than just simple web browsing. The web browser is an entire application platform (isn't that the idea behind web apps?). Google simply cannot have a license to all of the IP that goes through my browser. And unlike all these people who "are not a lawyer", I am a lawyer. I am not your lawyer, and this post does not constitute an attorney-client relationship. But because I am an attorney, I cannot grant Google this license, especially because some of the content passing through my browser is strictly confidential. The Rules of Professional Responsibility (which all lawyers must abide by) easily prohibit this exact kind of thing. Until Google scales this back, I will not use Chrome.

-- David Loschiavo, licensed to practice in FL. I'm not your attorney. This is not a legal advertisement; if you have a legal question, always consult an attorney licensed to practice in your jurisdiction.

My response to comments: Standard Licensing Legalese. There are some people who have claimed that this is standard legal jargon for every piece of software. This is false, as there are no similar clauses in the Firefox ToS. Others have pointed out that certain social networking services do have very similar clauses in their ToS – this is true. The difference is that when you're using a content host that systematically provides open access to your content (as opposed to a web browser), it's reasonable that they get a license to manage your content. I can easily send a message through email or on a social network without violating my professional ethics code or employment/student agreement – I shouldn’t be talking about my client’s confidential information on social networks anyways. But, Chrome's ToS doesn't extend to only one site. It covers everything you pass through the browser to every site.

My response to comments: Clarifying Permission to Use, Not Ownership. Apparently, some people have misconstrued the ToS (and this article) to be saying that Google owns everything you pass through Chrome. That's incorrect. Section 11.1 clearly states that you keep all your rights to everything passing through Chrome. What Google gets is permission to use anything you pass through Chrome (it’s merely a license). The end part of 11.1 limits that permission to the scope of promotional reasons, but then 11.2 and 11.3 extend that to mean that as long as Google or one of Google's affiliates use your IP in connection with Chrome, they can do whatever they want. Licenses are merely permission – not ownership. When you invite me into your home, you’re giving me permission to enter; I’m not added to your deed.

My response to comments: Recompiling. As this topic has ended up on slashdot, some others have recommended rebuilding the Chromium source and associated packages which are mostly under the BSD license. I have not looked into how easy it is to build Chromium under Windows. Of the Linux guys I've talked to about it, they either said it wouldn't compile, or that it compiled but immediately crashed. There is nothing which leads me to believe that the present day 3-term BSD license requires anyone to use Chrome's license, so this notion that we can recompile to avoid the EULA may actually have some merit – but first, you’ll need to get the source to compile, and get the binary to run.

Google's First Response. Here's an official response from Rebecca Ward, Senior Product Counsel for Google Chrome:

In order to keep things simple for our users, we try to use the same set of legal terms (our Universal Terms of Service) for many of our products. Sometimes, as in the case of Google Chrome, this means that the legal terms for a specific product may include terms that don't apply well to the use of that product. We are working quickly to remove language from Section 11 of the current Google Chrome terms of service. This change will apply retroactively to all users who have downloaded Google Chrome.

Google's Second Response. Google has updated the ToS and it now states

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.

12. Software updates ...

The questionable language has been removed entirely. I didn't think it was necessary for Google to step that far back, but it's definitely more in line with the mantra of "Do No Evil." Based on these changes, I can legitimately say that Chrome is now usable.

My response to comments: Consideration. Some people have argued that one of the basic tenets of contract law is violated by Google's response – I disagree. The general rule is that a modification of an agreement typically requires additional consideration (consideration in lay terms is generally "something of legal value"; there are a million caveats which I won’t get into here). To dispose of this issue, it's important to note how ToS are treated in virtually every consumer service business. These companies are under no obligation to continue giving you service, and you are under no obligation to continue using the service. As a result, continued use is usually sufficient consideration for the modification.

My response to comments: International Users. As this article has apparently gone international, users in other countries have informed me that Google has not yet updated the ToS for Chrome in other languages. As a number of laws regarding IP, consumer protection, and contract are much more vigorous than their US counterparts (especially in the EU), I foresee that this change will take a bit of time to filter down through Google's international legal departments. At the moment, there has yet to be any actual harm caused by this issue, and Google is busy translating this change to the 40+ languages in which Google offers services.