Tiktok

Mark Miller:

When I first came up with the idea to do a show on Terms of Agreement, TikTok was the first that came to mind. I called Joel MacMull immediately. He just laughed and agreed it had the great makings for an expose as to what’s in the thing. 

Now, with all the noise and foot stomping in Congress, it seems a natural time to release this episode of “That’s in my EULA??”. If you’ve got TikTok on your phone, and a couple 100 million of you do, you’ll want to hear what Joel found in his research.

From Joel: “The first, and this is in no particular order, but this is at least how my brain processed them… the first is obviously how draconian and or one sided these terms are.”

If that doesn’t pique your interest, then this show’s not for you. But I bet you’re ears perked up, didn’t they? Stay with us and find out how draconian TikTok terms of service really is.

Joel MacMull: 

I’ve gone through this terms of service, it’s probably taken me about two and a half hours. And that does not include the ten hyperlinked related agreements that are interwoven into this, that of course are purportedly freestanding, but nevertheless incorporated into this agreement. So certainly users need to be aware of them. 

Mark Miller: 

I think your comment to me was there’s a treasure trove of information.

Joel MacMull: 

There is a treasure trove of information. For what it’s worth, I think there’s a couple of themes that can be distilled. from reading this. 

The first, and this is a no particular order, but this is at least how my brain processed them… the first is obviously how draconian and or one sided these terms are. I remember from my law school days, there’s something called contracts of adhesion. And the concept is that they are so one-sided that they are unenforceable because they’re just so onerous on the other party. All of these, certainly social media.

Websites have very similar terms and conditions, which is that we get to do whatever we want for any reason or no reason. And you have next to little or no recourse. And if you don’t like it, don’t use our platform. This kind of thing has come up to the extent that I’m aware of it in the context of de platforming. 

Let’s take Twitter as an example. People were kicked off of Twitter, for various, incendiary remarks. There was a growing, philosophy out there that went something like this, “Wait a second. Twitter is the modern day town square, in the sense that if people want to have a political voice, regardless of what those views may be, they need Twitter.”

 The problem is that the First Amendment applies only to government restraints of speech, not private restraints of speech. At the end of the day, while we can say, in 2023 that Twitter is the modern day town square, and therefore we should be able to say anything we want, the private nature of these various platforms allows them, and with immunity, allows them to pick and choose who they want to keep on their platform. 

There was this kind of growing traction that the right tried to assert to say, “Wait a second, you can’t de platform us, we’re allowed to have a voice.” Courts were looking at this and saying, “Nope They’re really free to exclude those that they don’t like for any reason or no reason.”

Mark Miller: 

Doesn’t that open up to, racism, bigotry? That they could just say, we don’t want blacks on our platform. 

Joel MacMull: 

I mean I suppose it does by implication, right? No one in their right mind, no PR agency is going to say as much but again, these terms and specifically TikTok’s, getting back to TikTok, it says as much: We can deplatform you, deactivate your account, remove your content, or a mix of that for any reason or no reason. it says that probably a half dozen times in different language, in addition to that specific language. 

The other themes that emerge is how the terms of service are at odds with the way the platform works. In other words, there’s inconsistencies between the terms of service and what they say you can and can’t do. 

Mark Miller: 

This is specifically for TikTok or… 

Joel MacMull: 

…specifically for TikTok.

 There are internal consistencies here, and I’ll tell you exactly what I’m referring to. I’m a lawyer, so citation is everything. Let me just find it.

It’s under, paragraph 7, Contents, and the subtitle is TikTok Contents. I’ll read the sentence in its entirety. “Use of the TikTok content, which has been defined previously, or materials on the services for any purpose, not expressly permitted by these terms is strictly prohibited. Such contents may not be downloaded, copied, reproduced”, and here are the magic words, “distributed, transmitted, broadcast displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without our, or where applicable, our licensures prior written consent.”

Now, I’ll read the operative part of that sentence that stuck out at me again. “Such content may not be downloaded, copied, reproduce, distributed, transmitted, or broadcast.” We’re all I suspect we’re familiar with the TikTok interface. Yes. There are ways in which you can, like videos, there are ways in which you can, share videos, The idea that I can’t get it onto TikTok and promote other content or any content, whether it be my own or others, such that it is violative of the agreement is completely at odds with the way the interface works and how, of course across any social media platform, things become viral. 

Mark Miller: 

The interesting thing, Joel, for me, in that one is part of the interface allows you to embed the content anywhere that you want to in the world. 

Joel MacMull: 

And I haven’t even gotten to that, which by the way, there’s other parts of the agreement that speak to that as an allowance. so You’re absolutely right. There are inconsistencies. The document is rife with inconsistencies. 

The last thing that I’ll mention are what are just fundamentally unenforceable provisions.

Most lay people will look at something and make the assumption that because it’s TikTok and because it’s in writing, it necessarily is enforceable. There are sections here where I have question marks about the overall enforceability of this.

Look, I’ve been doing this for 20 years and so I perhaps, I’m more of a cynic now that when I first was a babe, These contracts, yes, they’re enforceable. there was some debate maybe 15, 20 years ago, I remember about click through or what we used to call shrink wrap contracts. In other words, if you click on a radio button or check a box, is that tantamount to you being a signatory on a piece of paper in the way that it used to be?

The answer is yes. The answer is yes.

And of course, because we’re not dealing in pieces of paper and we’re dealing with checking boxes and the simplicity of all of that, and all of us are guilty of it, right? whether it’s, uploading Apple’s new OS, system, or whenever it is, we just wanna get to the finish line. No one’s reading this stuff. 

Mark Miller: 

It took you as a professional two and a half hours to read this thing. So there has to be an expectation that from the people that create it, nobody’s going to read this shit. Nobody’s going to read it. 

Joel MacMull: 

I wasn’t reading it casually, I’m now reading it with a lawyer’s eye If I were to just sit down and not be making notes and even just start saying, oh, isn’t that interesting? it’s definitely an hour’s read. Unfortunately when I printed out an hard copy, it’s got to be at least 20 pages.

Mark Miller: 

Let’s back up a step then. I want to talk about your expectations before reading. And then what you found that was so egregious that you just put a big red circle around and said, this is crazy.

Joel MacMull: 

This is what I do for a living. I I had every expectation it was gonna read like this. my suspicions were confirmed. My suspicions were confirmed. as I said, because if we identify those three themes, they certainly quickly bubble to the surface and they don’t bubble to the surface off page 20. They bubble to the surface on third page. 

Mark Miller: 

When we’re looking at something like this, What’s my personal concern when I hit that accept button? 

Joel MacMull: 

Are you concerned about your own privacy? Are you concerned about protection of your intellectual property rights? I’m not saying these things are mutually exclusive.

Conceivably you’re concerned about all of these things, but these are certainly the issues that as a layperson, they need to be acutely aware of, because they are, as you can imagine, surrendering to the mothership rights that they would otherwise have. There are things that I am a staunch libertarian about and there are other things that I am a bleeding heart liberal. and I say that because I have no problem with people contracting away their rights. I don’t, we do it all the time. We do it all the time.

 Where I think it becomes difficult, and I think this is your point, is that you have lay people contracting away their rights, not appreciating what they’re doing. And that, of course is the great danger. I have actually read through contracts where you are giving the rights to your property away by putting them on this platform. 

And you are. And this document says as much. You are granting to TikTok a non-exclusive perpetual license to your content. 

Mark Miller: 

Who owns the content?

Joel MacMull: 

In this document, you own the content. There is an acknowledgement that you own the content, but there’s a difference between ownership and the right to use. This all comes from sort of ancient property law. 

Owning something. Ownership, right? Ownership. I possess it. I have a deed. I own it. A license is, I don’t own it, but I have the right to use it. All right. And in this agreement, we’re letting you know that you were granting us the right, to essentially use this and I think it actually uses the word perpetual, meaning in perpetuity forever.

Mark Miller: 

So as you’re reading this, and again, you do this for a living, was there anything that you highlighted in there that you were surprised or did your head pop back at anything you found there? 

Joel MacMull:

I’ll phrase your question a little bit differently.

There were things that I, while I wasn’t appalled, I thought to myself, get out here . Admittedly, my notes don’t reflect that as a theme, but let me see if I can pick a couple of things out Oh, here’s one. I’m raising this because I think it gives rise to a broader conversation. It’s called Accepting the Terms. it’s roughly early on in the agreement. And it says, “If you are accessing or using the services on behalf of a business or entity, and A you and your Includes you and that business or entity.” Fine, no problem. 

“B, you represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to these terms, and that you agree to these terms on the entity’s behalf. Now, in the old days of the internet, and let’s take for example, this was a, this was actually a real case the NFL In the early days of the internet, they had college interns running their social campaigns. So the reason why it matters is that you had college age kids with college age minds, tweeting things or putting stuff on social that was just at odds with what I will call the brand of the team.

 I will grant you that most certainly large corporations have put on their big boy pants and that college intern who was once upon a time in. social is now a box at least in an org chart, it’s like sort formally recognized. What it’s basically saying is, whoever is managing your social is now becoming an agent on behalf of the company for purposes of binding the company to the terms. Well, it may matter, for example, if the content being posted by, and I go back to the young intern example, cuz I just think it’s it’s an obvious one. if I as a business owner don’t have the intellectual property rights to the photographs, the video, the musical composition, there’s a laundry list of violations.

 TikTok is doing that because they wanna say, “Hey, wait a second. We had nothing to do with it. It was you, Company, that posted on our platform.”

You know, that was one of the things I’m thinking, as a business owner . that’s one of the things I want to know. Am I entrusting my TikTok account to someone I can trust that has all the wherewithal that, I would hope and expect from, my chief operating officer who’s sitting beside me in a C-suite. 

Mark Miller: 

Did you read anything in the document that you said to yourself, I would never want to be on this platform.

Joel MacMull: 

Let me give an obvious one. 

There’s an indemnification provision in the agreement. Okay? Which means what? Which means that even if I wanna assert a claim against you, TikTok, I’m on the hook to pay for it. And that’s not the way our legal system in the United States works.

 The American model is even if you are a loser, there’s no risk that a losing individual will have to pay the winner’s fees unless there’s a contractual provision to the contrary.

 Guess what folks? The indemnification provision is that contractual provision. designed to essentially, completely insulate TikTok from any liability from any of its users for any reason. 

Mark Miller: 

The thing that I looked at when I read through this too, and you actually did a count and said, look, there’s 10 external documents that I didn’t have a chance to get to in my two and a half hours of going through this.

When you’re looking at something like that, is it obscurity on purpose? Are there really needs for all these different documents? 

Joel MacMull: 

I guess there’s two views on this.

 I would imagine that the corporate position may be, I won’t speak for TikTok, but that, we create these other freestanding agreements, Our position on intellectual property. Our position on privacy. Our position on community guidelines. Then what this document is it tries to weave together all of that. I thought to myself, if I’m sitting as a judge anywhere, would I have the authority, would it be upheld on appeal for me to limit the terms of these terms of service. 

If we’re talking about 20 pages of a main agreement and we’re talking about another, I have a printed out here. I don’t know, I’d say conservatively, let’s say 40 to 60 pages of addendum, Doesn’t that on its face, undermine a kind of fairness or reasonability that the average user is, not going to not only read it, but comprehend it. 

Mark Miller: 

That’s a term you haven’t used yet, which I like, is reasonability. Is it reasonable to assume that somebody that’s signing this by clicking the accept button, is it reasonable to assume they would read this?

And the answer is no. 

The thing I want to end up here with Joel, not just in this segment, but all the segments that we’re going to do is, what’s your recommendation now specifically for TikTok as far as accepting the terms and what I as an individual should be concerned about when I click accept.

Joel MacMull: 

You need to know that all things being equal, you have no rights. You have very little recourse, and even if, you’re satisfied that you somehow have overcome the obstacles to those two things, you are on the hook to pay for it. In other words, you’ve got to not only absorb your own costs, but the other side in as much as you want to try and assert those rights. It’s a classic, buyer beware. You have an obligation as the user to be fully aware of what you’re reading and what you’re engaged in. 

The terms of service, for example, provide, again, very early on you acknowledge that you’re over the age of 18. I guarantee you, I guarantee that there are an ample number of users that are not 18 and oh, by the way, if you’re not 18, it doesn’t preclude you from using the platform. The language they use, and this is hysterical to me, please be sure your parent or legal guardian has reviewed and discussed these terms with you.

I promise you that all across America at the dinner table, there are very few conversations, whereas 13 year old Joey sits down with the terms of service and says, “Dad, I’d like to have a TikTok account. Can we discuss the terms of service?”

Mark Miller: 

That’d be a stimulating discussion, wouldn’t it? 

Joel MacMull: 

I think it would be.

Mark Miller:

Thanks for joining us for this week’s “You’re kidding me… that’s in my EULA??” We’d appreciate your comments on today’s show page, located at WhatsInMyEULA.com. You’ll also find information on how to get in touch with Joel. While you’re on the page, tell us what other EULAs we should investigate. If we use your suggestion, we’ll give you a shoutout in that episode.

“That’s in my EULA??” is published weekly. Special thanks today to Katy, that’s with a ‘T”, Kadi, that’s with a “D”, Edwin, and Tracy for the awesome voiceover work at the beginning of the show. Music today is provided by Hash Out from Blue Dot Sessions. 

We’ll see you next week.

This was a Sourced Network Production.

If you’re interested in talking with Joel about some of the issues in this episode, shoot him an email.

Joel G. MacMull | Partner
Chair, Intellectual Property, Brand Management and Internet Law Practice
(973) 295-3652 | JMacmull@mblawfirm.com