America Online Inc. on Sunday moved to quell public criticism of the terms of service for its AIM service, insisting the controversial privacy clause does not pertain to user-to-user instant messaging communication.
A section of the controversial clause, which was first flagged by Weblogs and discussion forums, reads: “Although you or the owner of the Content retain ownership of all right, title and interest in Content that you post to any AIM Product, AOL owns all right, title and interest in any compilation, collective work or other derivative work created by AOL using or incorporating this Content.
“You waive any right to privacy. You waive any right to inspect or approve uses of the content or to be compensated for any such uses,” according to the AIM terms of service.
America Online spokesman Andrew Weinstein, however, maintained that AOL does not monitor, read or review any user-to-user communication through the AIM network, except in response to a valid legal process.
Weinstein told eWEEK.com the clause in question falls under the heading “Content You Post,” meaning it only relates to content a user posts in a public area of the AIM service. “If a user posts content in a public area of the service, like a chat room, message board or other public forum, that information may be used by AOL for other purposes,” he explained.
One example of this, Weinstein said, may be a user who posts a “Hot or Not” photo and thus allows AIM to post it for other AIM users to vote on. “Another might be taking an excerpt from a message board posting on a current news issue and highlighting it in a different area of the service.
“Such language is standard in almost all similar user agreements, including those from Microsoft [Corp.] and most online news publications. That clause simply lets the user know that content they post in a public area can be seen by other users and can be used by the owner of the site for other purposes,” Weinstein added.
“AIM user-to-user communication has been and will remain private,” the AOL spokesman declared.
However, Weinsteins stance that user-to-user IM communications are exempt from the controversial clause isnt sitting well with legal experts.
Rob Hyndman, a technology lawyer based in Ontario, pointed out that the terms of service covers the entire AIM product and does not explicitly exclude instant messaging.
“I think the AOLs of the world dont take the impact their TOS [terms of service] have on users seriously enough, generally because they have market power and the customer doesnt,” Hyndman told eWEEK.com, arguing that the AIM terms of service appears all-encompassing.
“To be fair to them, I think the errors are innocent, and more the result of sloppy drafting and a reflexively heavy-handed approach to drafting TOS,” he said.
Hyndman also took issue with Weinsteins explanation that the heading “Content Your Post” and the use of the word “post” automatically exclude IM conversations. “They seem to say that using that verb means their privacy language only applies to contributions to public forums, i.e. where one posts. But if thats true, why do the TOS use the verb post when referring to all AIM products, if not all AIM products can or do post?” he asked.
In addition, he pointed to the very last line in the terms of service, which reads: “The section headings used herein are for convenience only and shall not be given any legal import.” That line, Hyndman asserted, renders Weinsteins explanation weak.
“Many lawyers natural tendency, especially when drafting to the retail market, is to put as much oomph in the TOS as possible from their clients perspective. They make it as broad as possible, essentially. Until quite recently, there really was no way for customers to respond to this,” Hyndman added.
Public impugnment of AOLs privacy policies could have serious ramifications for the companys attempts to monetize its instant messaging network. AOL uses the AIM@Work service to hawk business-related tools like Identity Services to allow the use of corporate e-mail addresses as AOL screen names. It also offers premium services like voice conferencing and Web meetings.
Editors Note: This story was updated to include comments from Rob Hyndman.
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