XenForo Drama

[frm]

I think XenForo needs to update its license agreement. It's very vague about when they can Terminate.

You are solely responsible for ensuring that Your Content and Your use of the Software complies with all applicable legislation and regulations, including but not limited to all applicable Data Protection and Privacy legislation.

Of which country? XenForo Ltd. is a UK-based company.

However, one of the two officers listed is a Scottland resident.

XENFORO LIMITED people - Find and update company information - GOV.UK

XENFORO LIMITED - Free company information from Companies House including registered office address, filing history, accounts, annual return, officers, charges, business activity

find-and-update.company-information.service.gov.uk

Scottland passed the Hate Crime and Public Order (Scotland) Act 2021. The protections that the US Constitution affords would allow US citizens to engage in such speech, despite how they plan on enforcing it in the future in Scottland.

So is this by UK law, Scottland law, or applicable law where the XF instance is used/installed? Because that brings us to the next point in the agreement:

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.

Back on the topic of Tracey, there is an argument that XenForo is breaching its own license agreement (#2) by allowing this thread to delve into Tracey's scenario. One could conclude that this thread is breaching the rights of a third party (Tracey) by not allowing them to represent themselves, but that's shaky. However, is this public conversation causing harm to Tracey? Presumably, as his real name is being used, and the thread contains speculation about Tracey without staff intervening and explicitly stating why he was banned or closing the thread for further discussion about Tracey, this topic could reasonably fit into defamation, potential harassment* (#1), and harm.

I don't know Tracey and not defending his actions. But, it shows how loosely written the license agreement is, whether it's for Tracey or "hate speech" that is protected elsewhere in the world.

Edit #1:
Added harassment and linked to the defamation definition, if we are going based upon US law.

Harassment refers to words or behavior that threatens, intimidates, or demeans a person. Harassment is unwanted, uninvited, and unwelcome and causes nuisance, alarm, or substantial emotional distress without any legitimate purpose.

Sometimes, harassment is used more generally to refer to repeated irritating or bothersome behavior, such as persistent telephone calls from a debt collector.

Per: https://www.law.cornell.edu/wex/harassment

Edit #2:
I'm obviously aware that XenForo Ltd. can license its own software to itself differently than to consumers. That was merely hyperbole and a thought exercise for other forum admins. If this thread were to take place on another XenForo forum and Tracey pursued legal action against them and won, could, and would, XenForo Ltd. terminate that forum's license based on the legal proceedings, and if not, would it be reconsidered if he then brought legal action against XenForo Ltd. for their breach of the license after winning?

It's very loosely written where it seems that if a user of any XF forum felt wronged, they could immediately petition XF for Termination, and per the license agreement, it could be terminated without some sort of due process.

 

[Mr Lucky]

Back on the topic of Tracey, there is an argument that XenForo is breaching its own license agreement (#2) by allowing this thread to delve into Tracey's scenario.

I could find nothing in the licence agreement about that. Are able to quote the relevant wording?

 

[frm]

I could find nothing in the licence agreement about that. Are able to quote the relevant wording?

Did you not read the entire post? It quotes the termination clause and has an Edit #2 footnote.

3. Restrictions​

This license is granted to You alone. You may not redistribute the Software in whole or in part. You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Software in any form, on a temporary or permanent basis, without the prior written consent of XenForo Limited. You may use only the XenForo customer area downloads associated with the License to run instances of the Software.

For the avoidance of doubt, You are solely responsible for managing content posted using your installation of the Software (“Your Content”). XenForo Limited shall have no liability in respect of Your Content including but not limited to its accuracy or lawfulness.

You are solely responsible for ensuring that Your Content and Your use of the Software complies with all applicable legislation and regulations, including but not limited to all applicable Data Protection and Privacy legislation.

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.

You may not use the Software in conjunction with any other software you do not have a valid license to use.

You hereby agree to indemnify Us from any loss or damage arising from Your breach of this provision.

4. Termination​

The License for the Software is effective until terminated. You may terminate the License at any time by uninstalling the Software and destroying all copies of the Software.

XenForo Limited reserves the right to revoke Your License to use the Software should any of the terms of this Agreement be violated. In the event that We revoke Your License for a violation of this Agreement, no refund will be granted.

If you read the entire post, to include Edit #2 footnote, you'd see that it's hyperbole as they can obviously license it out to themselves differently than consumers, but #2 brings up a point that should be addressed.

Edit #2:
I'm obviously aware that XenForo Ltd. can license its own software to itself differently than to consumers. That was merely hyperbole and a thought exercise for other forum admins. If this thread were to take place on another XenForo forum and Tracey pursued legal action against them and won, could, and would, XenForo Ltd. terminate that forum's license based on the legal proceedings, and if not, would it be reconsidered if he then brought legal action against XenForo Ltd. for their breach of the license after winning?

It's very loosely written where it seems that if a user of any XF forum felt wronged, they could immediately petition XF for Termination, and per the license agreement, it could be terminated without some sort of due process.

I guess I should've linked to the license agreement so nobody had to take my word on it:

License agreement

Terms and conditions for self-hosted XenForo

xenforo.com

 

[Mr Lucky]

Did you not read the entire post?

Yes obviously, but still don’t see how they are breaching their own licence agreement, hence I asked the question. I'm aware you didn't say they are breaching their own licensing agreement, only that there is an argument that they are. I'm just querying that argument as I don't see what specifically this thread is breaching. You mentioned defamation and potential harassment, is that what you mean? Both of those are arguable and one of which is only potential so hasn't happened. However derogatory, perceived defamation has to be proven, otherwise it isn't necessarily defamation xenForo cannot be said to be guilty of defamation as they are innocent until proven otherwise according to nearly every jurisdiction that I think could apply.

 

[Arantor]

If I had to guess, this is lawyer speak for “covering XF’s ass against people who don’t understand that just because a site runs XF, XF is not responsible for its content” as well as PR coverage against cases like KiwiFarms that used to have an XF licence but was terminated by XF.

Also worth noting that hate speech etc do have specific legal definitions and 99% of what happens on forums never gets close (not even under UK law), and in particular many jurisdictions require that defamation cases prove that there was tangible damage to reputation. I would not, for example, imagine any judge considering the commentary about Tracy to be defamatory as the question of what damage has actually occurred would come up. Can that damage be quantified?

 

[Mr Lucky]

defamation cases prove that there was tangible damage to reputation.

I wasn't aware defamation cases had to prove tangible damage, but that it could also be potential damage. I think though certainly it would need to prove damage in order for a claim to be made for damages. It's also worth noting that even when there is damage to reputation that by itself doesn't mean defamation occurred. Defamation surely has to include something that is provably false.

 

[Slavik]

snip

I'm not going to delve into each point but pretty much everything you posted /speculated on was absolute rubbish.

 

[Slavik]

I wasn't aware defamation cases had to prove that but that it could be potential damage. I think though certainly it would need to prove damage in order for a claim to be made for damages. It's also worth noting that even when there is damage to reputation that by itself doesn't mean defamation occurred. Defamation surely has to include something that is provably false.

I cant remember the specific legal test off hand but its something like:

• The statement has to be false
• It must be published to negatively effect the reputation of said person or company
• It has to be published as fact
• There must be evidence of serious harm

There are then a myriad of absolute defences against any such claim.

 

[Arantor]

It also varies between jurisdictions, e.g. in the US there is a test of “actual malice” to be met.

 

[frm]

I'm not going to delve into each point but pretty much everything you posted /speculated on was absolute rubbish.

So ignore the sentence in Restrictions and the one in Termination that if you violate any part of the agreement the license can be terminated because it's rubbish to interpret it in that manner... Check.

The fact is, the longer threads like this go on about specific individuals, the more likely it is for people to pile on. That creates a cyclic pattern of hostility that can be perceived as harassment, and more likely than not, reach the minimum threshold in some, if not all states, to be classified as a misdemeanor at the very least.

But, no answer as to whether this thread took place on XYZ and if XenForo would terminate their license because they broke the agreement if someone could prove harm, defamation, or harassment in a court or get a court order against someone for harassment (a restraining order essentially) for the backbone of their case that should merit license Termination, per the Restrictions clause. It's poorly written to offer any forum guaranteed protection to be able to moderate their community before it reaches that level. Period.

I'm not going to delve into each point but pretty much everything you posted /speculated on was absolute rubbish.

What's rubbish about it? That's the point. The Restrictions clause and Termination clause are so loose that is can be read and interpreted as such.

I think something along the lines of this is more reasonable...

You undertake to ensure that You or others do not use the Software to engage in or promote illegal activity or conduct that violates the rights of third parties, including defamation, discrimination, harassment, hatred, or harm, as defined by the laws of the United States, United Kingdom, or Scotland. If such content, including the promotion of illegal activity or conduct directed towards third parties, remains unresolved for 30 days from an initial complaint, XenForo may impose a 7-day probation on the license. If resolved within this period, the license will remain valid; otherwise, it may be suspended for 30 days, followed by termination if the issue persists.

Something to that extent would provide forum admins greater autonomy of their community without fearing that their license could be immediately terminated for the actions of their members without some sort of system in place that they could cool things down.

Vs.

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.

The only thing rubbish is the Restrictions clause that leaves the door wide open to lawfare, or favoritism, to get a forum's license suspended if not addressed.

Otherwise, why have that clause to begin with? What purpose does it serve if you're not going to afford protection to the consumer and only the third parties?

 

[Chris D]

We’re not going to have a debate about the specifics of the license agreement. It is what it is. If you are ever affected by any of the clauses, you’ll know about it and then it can be discussed.

Until then, debating it is entirely fruitless because we have no plans to change it.

In our decade and a half long history there have only been a handful of license revocations for highly egregious breaches, in another 15 years there might be a handful more. 99.9% (maybe more) of our customers have nothing to worry about now or ever.

If anyone has a problem with the license agreement as it stands, you probably shouldn’t have agreed to it in the first place. If you would like to rescind your agreement, that can be arranged at your request, but the terms as they stand will not be changed. If we ever change the terms in the future - which we have done maybe twice (and no current plans to change them again) - you will have the opportunity to accept the agreement or not.

Ironically the people who often worry about such things in the agreements are often not even close to being the target case for potential breaches, but some people have an abundance of paranoia over such things with no logical reason.

For the last nearly 15 years we’ve been perfectly reasonable and decent in enforcing our license agreement, and long that will continue.

 

[frm]

We’re not going to have a debate about the specifics of the license agreement. It is what it is. If you are ever affected by any of the clauses, you’ll know about it and then it can be discussed.

Noted.

 

[Arantor]

Stop being reasonable when there’s drama to be had! (I kid, of course.)

 

[Mr Lucky]

It just occurred to me, there must be thousands of forums (whether xenForo or otherwise) that contain some alleged or real defamation Are they all in breach of the licence agreement? No because until there is a verdict they aren't proven to be defamation. You can bet xenForo would not revoke a licence based on "he called me a poopoohead with bad breath". But by the time any such defamation has been proven it will have to have been removed, hence no longer in breach of a licence agreement.

 

[frm]

It just occurred to me, there must be thousands of forums (whether xenForo or otherwise) that contain some alleged or real defamation Are they all in breach of the licence agreement? No because until there is a verdict they aren't proven to be defamation. You can bet xenForo would not revoke a licence based on "he called me a poopoohead with bad breath". But by the time any such defamation has been proven it will have to have been removed, hence no longer in breach of a licence agreement.

You didn't read or comprehend the full scenario of Edit #2.

I'm obviously aware that XenForo Ltd. can license its own software to itself differently than to consumers. That was merely hyperbole and a thought exercise for other forum admins. If this thread were to take place on another XenForo forum and Tracey pursued legal action against them and won, could, and would, XenForo Ltd. terminate that forum's license based on the legal proceedings, and if not, would it be reconsidered if he then brought legal action against XenForo Ltd. for their breach of the license after winning?

Surprisingly, it takes very little effort and money (under $100) to file a case and have a judge without a jury hear the case and make a decision on it. Someone with the time on their hands could even file the motion pro se, and if the evidence is mounting with the context in each subsequent reply, it only favors the victim in a ruling more. Most, if not all forums, could not fight an order once issued because they are hobbyist forums that wouldn't retain legal counsel, and just follow the order. The victim could then C&D the host with this, and cheap hosts would most likely just take the site down without due process of any kind.

But, the damage (harm) is already done, even if they follow through with the judge's decision. (The part of XF's license agreement)

That's where step 2 of the site coming back online would come in: C&D again if the content persists or petition XF for termination.

I think @Chris D answered the question as to what XF would do, despite what the license agreement says. I took it that, at least, XF would enter some sort of private mediation with the licensee before they decide to terminate the license outright, which a cheap host wouldn't do to just move on with their day because they already have very strict policies in place that they follow at a click of a button.

 

[Mr Lucky]

You didn't read or comprehend the full scenario of Edit #2.

Not only is that patently not true but it has irretrievably damaged my reputation so you will be hearing from my legal team and xenForo will now need to revoke their own licence for allowing this obvious defamation.

 

[frm]

Not only is that patently not true but it has irretrievably damaged my reputation so you will be hearing from my legal team and xenForo will now need to revoke their own licence for allowing this obvious defamation.

Look forward to it.

 

[FTL]

Ironically the people who often worry about such things in the agreements are often not even close to being the target case for potential breaches, but some people have an abundance of paranoia over such things with no logical reason.

For the last nearly 15 years we’ve been perfectly reasonable and decent in enforcing our license agreement, and long that will continue.

That's it, it all depends on the behaviour of the company behind such agreements and I've never seen any controversies or scandals regarding XF the company over their agreement, so I'm not worried about falling foul of it and having my license revoked. Especially so as my forum is pretty standard when it comes to the kinds of things we talk about.

And yeah, in general, any company will give themselves all the rights and all the power over the buyer in such agreements. Well, duh, they'd be foolish not to which is why the behaviour and reputation of the company are critical to the user experience. I can tell you that if I was selling a product I'd do something similar. Heck, even my forum rules on my hobby forum containing no ads are like that, yet you don't see users complaining about me being overbearing or a bully, even though it would be trivial to abuse my power to abuse users and point to various parts of the rules as justification should they complain.

 

[Suzanne O]

Defamation lawsuits can be nasty. Been there myself.
That's why you don't see me losing the plot on here and defaming the staff.
You do not want to get sued by some other person.

 

[Arantor]

It seems to me that those fretting over abuses of power have some correlation to those most likely to do so.