2021-07-07 License agreement update issue

[PaulB]

It appears that the following:

You undertake to ensure that the Software is not used by You or others to engage in illegal activity. You may not use the Software to engage in any activity that would violate the rights of third parties.

has been changed to:

You undertake to ensure that the Software is not used by You or others to engage in or promote: illegal activity; any activity that would violate the rights of third parties; defamation, discrimination, harassment, hatred or harm of third parties.

Note the addition of "or promote," as well as a series of very loosely-defined activities. Am I correct in saying this now requires forum operators to assume excessive responsibility for user-generated content? That doesn't seem like an amenable change, and I'm curious what the motivation was for this update. I strongly object to this change.

 

[Kier]

The License Agreement has always assumed that the licensee is responsible for any content posted using the software. In that regard, licensees' responsibility for user-generated content has not changed.

The changes were made to clarify what we consider to be violation of rights and illegal activity. It is not an attempt to punish licensees for the occasional off-colour post from users.

 

[PaulB]

It is not an attempt to punish licensees for the occasional off-colour post from users.

Would it be possible to codify that intention in the wording of the agreement? As it stands, terms like "hatred" and "harm" are quite broad, and there's inevitably no shortage of such content on a large enough forum. My definition of "hatred" is a fairly liberal one, but that doesn't mean I can reasonably censor anything that I would personally consider to be hatred.

 

[PaulB]

The phrasing here has gone from actively engaging in illegal activities--which, of course, probably doesn't need to be stated, given that it's illegal anyway--to encompassing promoting legal-but-controversial activities. That's a huge change, one that a professional network can't tolerate.

I take issue with a lot of the content posted on our forum, but that doesn't mean I feel it's right to delete it--it's a professional forum and our members need to be able to express controversial opinions. Sometimes those opinions are deplorable or expressed in an unprofessional manner, but it's a professional community, not a casual social network. They make such statements at the peril of their own reputation within the industry. It's not my place to sanitize their public discourse: if they choose to act inappropriately, their peers ought to be aware of that and are expected to be capable of judging the situation accordingly. If they want to ruin their career, that's their prerogative.

 

[Chris D]

I don't think any further clarification is required. The existing wording of "violate the rights of third parties" was already quite broad and the changes today are the result of further clarification of that existing wording.

These changes do not reflect a change in policy. As such, the vast majority of sites - including taking into consideration your specific example above - do not need to take any further action.

I don't believe a "professional community" comes anywhere close to risking a license breach, even if an occasional user were to express deplorable opinion. In your specific example it already sounds like such behaviour is discouraged and may have far reaching implications for them if they were to do so.

 

[PaulB]

Thanks. As long as that's the official policy to which we're effectively agreeing by updating, I don't think it should be an issue, but we would certainly appreciate if that were codified in the text of the agreement itself. There's a world of difference between "violating the rights of third parties" and "undertaking to ensure that XenForo is not used by others to engage in or promote hatred or harm."

 

[Black Tiger]

I don't believe a "professional community" comes anywhere close to risking a license breach,

In which case you too easily forget about the hobbyist community's which might be even more.

As stated in the other thread, it's too unclear yet who is going to decide what is harassment, racism and defamation.

So this seems to me a very legit question for what exactly we're agreeing to (as ar frm's question in that thraed) depending on country.

Are all the agreement terms ment to be c.q. limited to what the local law says about it?
If yes, then it's clear, because when I violate the law on these terms, then I also violate Xenforo's agreement.
If not, then it has to be made more clear when the agreement will be violated especially who decides when something is illegal, harassment, etc. etc..

Especially since violating rights and things like especially harassment and defamation can only be decided by court if they are indeed the case.

Most important agreement changes juli 7th

The XenForo license agreement was last updated on Jul 7 2021. So the day before yesterday. It's a long piece of text, so can somebody state the most important changes between the old and new license agreement? Additionally, wouldn't it also be wise to maybe send license agreements (and most...

xenforo.com

Take in mind that for Dutch and European law, these things needs to be clear, agreements which we call "algemene voorwaarden". If not clear, or to broadly defined without stating who defines when that issue is the case, that part of the agreement is invalid even if we sign it.

Don't want to do difficult, only want to have it clear. Don't want to be accused by something for example which Xen things is racism (just an example) and our law says it's not. See my zwarte piet example in the other thread.

Just saying that YOU don't think any further clarification is not necessary, is your opinion but does not clarify if the definition is based on court rulings or xenforo's idea's of the violation.

So if somebody says my forums are doing some defamation and harassment, do I get a license violation and my license revoked? Or has the court to decide first if this is the case? That must be clear!
It's unprofessional to not make clear how is defining when a violation has taken place.

Court or Xenforo? That must be clear. It's all I'm asking.

 

[PaulB]

Court or Xenforo? That must be clear. It's all I'm asking.

I don't think that's likely to be an issue. The scenario I'm most worried about is:

1. forums.example is a large forum running XenForo.
2. Alice doesn't like something hurtful-but-legal that Bob said on forums.example.
3. Alice can't go after forums.example because forums.example has lawyers and would likely win a case brought agains them.
4. Alice can't go after Bob because Bob also has lawyers.
5. Alice demands that XenForo enforce their terms of service and threatens to litigate.
6. XenForo doesn't want to or can't afford to deal with litigation and relents.

This may sound dramatic ("that would never happen and isn't worth worrying about"), but similar scenarios aren't unusual for large forums. Similarly, XenForo might argue that they would stand their ground, but that may not always be realistic.

Why is XenForo taking on additional liability by changing the wording of their license agreement? Furthermore, why is XenForo putting themselves in a position to be able to censor what appears on unrelated websites that they don't host?

While it may not be a change in policy, it's definitely a material change in the agreement. It makes very little sense outside the context of XenForo Cloud.

Has this policy ever been utilized? Has XenForo ever revoked or refused to renew a license as a result of this policy?

If this significant change of wording doesn't constitute a change in policy, what is the actual policy?

 

[Chris D]

In which case you too easily forget about the hobbyist community's which might be even more.

As stated in the other thread, it's too unclear yet who is going to decide what is harassment, racism and defamation.

So this seems to me a very legit question for what exactly we're agreeing to (as ar frm's question in that thraed) depending on country.


Especially since violating rights and things like especially harassment and defamation can only be decided by court if they are indeed the case.

Most important agreement changes juli 7th

The XenForo license agreement was last updated on Jul 7 2021. So the day before yesterday. It's a long piece of text, so can somebody state the most important changes between the old and new license agreement? Additionally, wouldn't it also be wise to maybe send license agreements (and most...

xenforo.com

Take in mind that for Dutch and European law, these things needs to be clear, agreements which we call "algemene voorwaarden". If not clear, or to broadly defined without stating who defines when that issue is the case, that part of the agreement is invalid even if we sign it.

Don't want to do difficult, only want to have it clear. Don't want to be accused by something for example which Xen things is racism (just an example) and our law says it's not. See my zwarte piet example in the other thread.

Just saying that YOU don't think any further clarification is not necessary, is your opinion but does not clarify if the definition is based on court rulings or xenforo's idea's of the violation.

So if somebody says my forums are doing some defamation and harassment, do I get a license violation and my license revoked? Or has the court to decide first if this is the case? That must be clear!
It's unprofessional to not make clear how is defining when a violation has taken place.

Court or Xenforo? That must be clear. It's all I'm asking.

I don't recall people calling for clarification so voraciously over the previous "rights of third parties" clause which amounted to exactly the same thing which you will have already agreed to in the past. We've simply clarified what that means and it does not reflect a change in policy.

We're not going to be providing any further clarification. You either agree to the terms or you do not agree to the terms. If you do not agree to the terms then you are, unfortunately, no longer able to download new versions of XenForo.

Has this policy ever been utilized? Has XenForo ever revoked or refused to renew a license as a result of this policy?

No.

 

[PaulB]

I don't recall people calling for clarification so voraciously over the previous "rights of third parties" clause which amounted to exactly the same thing which you will have already agreed to in the past. We've simply clarified what that means and it does not reflect a change in policy.

It certainly doesn't sound like it amounts to the same thing; it appears to be a material change in wording.

You either agree to the terms or you do not agree to the terms. If you do not agree to the terms then you are, unfortunately, no longer able to download new versions of XenForo.

I agree with the interpretation described in this thread, but that doesn't match my own interpretation. That leaves some concern over how other might interpret it. I certainly don't expect that it would ever land in a courtroom, but the wording at present is disconcerting.

It also raises questions about the future of the license agreement. The consequence for failing to agree to a future change is rather grim: no updates, which effectively means 6-7 figures of sunk costs for internal development that revolved around XenForo if we're forced to migrate. Surely you can understand how scary that prospect is, even if it's unlikely. It's a concerning situation.

 

[Black Tiger]

so voraciously over the previous "rights of third parties" clause

Because rights of third parties is mostly understood as things like copyrights and intellectual property rights. Totally never as harassment, racism and the other things mentioned now. That is a totally different ballgame.

It's very unprofessional to not clarify who will decide what is a violation of right. It's an easy answer, if you refuse to clarify this, then this means a simpel accusation of any idiot about deflamation or harassment could already be enought to revoke a license if Xenforo thinks this is the case. It's not your task! In spite of the fact that I also am against harassment etc. but that's not the point.

It's not Xenforo's task to censor and we paid for the software. If there is any violation a person should firstly get really pointed guilty by court of law, and not by Xenforo's interpretation of what's right or wrong.

If you don't clarify this, then I will now make a statement that I will agree under protest, because otherwise I cant get new versions anymore, and I won't agree on any decision about violation made by Xenforo until a Dutch court has ruled me as guilty.
I probably won't violate anything, but simple refusing clarification is just unprofessional and very user unfriendly handling by Xenforo to their customers.

I was thinking of buying a 2nd license, but now I certainly will not. I'm curious if Kier agrees to this explanation refusal.

 

[Chris D]

Because rights of third parties is mostly understood as things like copyrights and intellectual property rights. Totally never as harassment, racism and the other things mentioned now. That is a totally different ballgame.

I'm vehemently sure that people have the right to use the internet without being racially abused, discriminated against, or bullied and a failure to respect that would have been a violation of their rights as-is.

I probably won't violate anything

That's most excellent to hear. It really does seem that no one in this thread has anything to worry about.

 

[imno007]

Possibly some over-thinking going on here...? Is this really so very different from say, Invision's license agreement, where it reads:

You may not utilize the Software or Services to engage in, facilitate, or otherwise allow others [emphasis mine] to engage in any activity that violates any law or regulation or the terms and conditions within this Agreement.

If it becomes a problem, then we can worry about it. But until and if that happens, I think we can conclude that it will be pretty much business as usual.

 

[PaulB]

It really does seem that no one in this thread has anything to worry about.

Surely you can see that it's a bit disconcerting, though. I'm not sure I agree with @Black Tiger's perspective, but I do worry that I may not actually understand what I'm agreeing to by downloading XenForo. The interpretation you've described here sounds fine, but it doesn't match how I first interpreted the the new wording.

I can certainly think of content still visible on our forums that I would personally consider to be abusive, bullying, and threatening--more than "off-colour"--but I'd rather not delete it because its existence is important: they were real statements made by real people, and their peers deserve to know that such events occurred.

Based on your replies in this thread, I don't get the impression you expect us to remove such content, but that's not the impression I got from reading the new agreement.

If it becomes a problem, then we can worry about it.

Well, yes and no. It's an agreement, and it's important that both sides come to a mutual understanding. Additional clarification in this thread probably isn't necessary--XenForo has made their stance clear, and it seems reasonable--but it would be nice if it were clearer in the text of the agreement itself.

 

[Black Tiger]

I'm vehemently sure that people have the right to use the internet without being racially abused, discriminated against, or bullied and a failure to respect that would have been a violation of their rights as-is.

I totally agree with that, that's totally not the issue.

However, now you put it in a license agreement with the risk to loose the license on violation.
The problem is that it's unclear when a license is revoked. Again, se my example of the Black Peter discussion. Some see Black Peter as racism, others don't and law says it's a social discussion.
So if somebody complaints about racisme if we talk about (again for example) about Sinterklaas and Zwarte Piet and somebody complaints about racism. What happens... Xenforo's decision or follow what the law says?

It isn't that easy as you state it is.
Like PaulB says, the wording makes it also unclear.

Same for the "promotion" of illegal activity's. If everything would be that black and white it would be easy, but in these terms there is an enormous grey areay. Who decides what is harassment when others see something as a joke...
The big issue here that people can have there licese revoked for something that is a very grey area. So it's logic that one starts to worry when in these grey area's licenses can be revoked.
And that's why I make such fuzz about this addition, again, see the simple example about Black Peter. It is not racism in our country.
That grey area is what's worrying me. And the fact that there are so many differences about these grey terms in many country's.

@imno007 The "others" are our users and ourselves. And no we can't wait, because if you agree, there is nothing to discuss about anymore if something like it happens.
Edit: Because there will be pointed to the agreement you agreed with... end of story.

 

[PaulB]

However, the problem is that it's unclear when a license is revoked.

I don't think that part is unclear, really. If you don't agree to the modified license, you're bound by the terms of the old license. If you agree to the new license, you're bound by the terms of the new license. @Chris D stated that you can't download updates without agreeing to the new license. Both versions do explain what happens when they're violated, as well as the relevant jurisdiction. Combined with the interpretation offered by XenForo, I don't think much ambiguity remains.

My only remaining request is that the clarifications and interpretations written in this thread be included in the body of the agreement itself in future revisions, nothing more. I'm not looking for additional clarification at this point.

 

[PaulB]

To that end, I'm fine with this thread being closed so it doesn't become a debate over the balance between censorship and free speech--those are social issues that remain unsolved and aren't worth debating here. Clarification has been offered, and it satisfies my concerns. I'd like to see it included within the text of the agreement, but that's a request, not a matter worthy of debate.

 

[Black Tiger]

I don't think that part is unclear,

Yes it is. I know when I'm bound to old or new license. The unclear part is what happens in the grey area I mentioned. I specifically put that example in the context to make my point clear.
I would like to agree to the new terms... but it seems with this grey area one can loose it's license way more easily and nobody knows or is prepared to declare on how this works.
I''m not native English. So I don't understand every juridiction on it, because harassment and other things mentioned are a grey area and can only be pointed out if a court has decided that this is indeed happening ruled that it's indeed the case.

My worry is that we have some discussions on our forum and users give their opinions about things in the world. Lots of things. So we can easily get a complaint of somebody somewhere about racism or defamation or harm of a webshop, even if what is said is true.
Might nog be the case for racism, because we are against racism, but the black peter discussion can put this up. There is a reason for my example.
So some shop goes to Xenforo, says we are doing defamation because we tell customers not to buy there because we don't have good experiences with them and then... revoke license or test it in court if it's indeed defamation?
Those are my worries.

I'm not fine with the thread being closed because my worries about this grey area... I don't want my license revoked just because Xenforo or somebody else thinks something is wrong while in our country it's a social discussion or not unlawfull. I'm not native English, this is unclear to me.

 

[nopitter]

I'm vehemently sure that people have the right to use the internet without being racially abused, discriminated against, or bullied and a failure to respect that would have been a violation of their rights as-is.

I agree.

The license says: "You undertake to ensure that the Software is not used by You or others to engage in or promote: illegal activity;"

Illegal in which standards? UK? EU? Legal standards in the homeland of the forum owner? So is it ok, so use xenforo to discuss about homosexuality? With a forum located in a country, where these kind of public discussion is prohibited by law. Just as an example, there are a lot others.

So is it ok? Along with your licence - no.

Please don't get me wrong. Living in Germany, i have no problem with your license. Others will have, if they take it seriously.

BTW, thanks for xenforo. Switching from + 20 years vbulletin makes my sparetime much more relaxed.

Peter

 

[imno007]

Well, yes and no. It's an agreement, and it's important that both sides come to a mutual understanding. Additional clarification in this thread probably isn't necessary--XenForo has made their stance clear, and it seems reasonable--but it would be nice if it were clearer in the text of the agreement itself.

@imno007 The "others" are our users and ourselves. And no we can't wait, because if you agree, there is nothing to discuss about anymore if something like it happens.

My point was, if you want to dissect it like a lawyer, Invision's wording of "any activity that violates any law or regulation" could literally mean any law or regulation anywhere. In the US alone, 47 states have statutes criminalizing various types of "bias-motivated violence or intimidation," which leaves plenty of room for vagueness. I don't think Xenforo's wording here encompasses any more possible violations, or implies any more direct action on their part, than Invision's wording. It would only be a problem if Xenforo itself started policing license holders and revoking licenses for what they determined were violations of the law... wherever. Anywhere? Everywhere? If that were to happen, then yes, I would agree that probably more precise wording would be called for.