I wrote an article for Newsday a year ago cautioning Lord and Taylor about their take-over of The Fortunoff Company. Today, for posterity, because Fortunoff recently filed for bankruptcy,  I visited Newsday to buy a PDF of the article.  (News should always be free in my book, but that’s a story for another day.) With a few extra minutes to play around thanks to my newly repaired Achilles tendon, I ventured into the Terms of Service section of Newsday.com.  OMG.  It contained 33 paragraphs, 262 lines of text and 2690 words — just about guaranteeing nobody will read it but corporate lawyers and people cloning TOS language for their start-ups.

Here’s the paragraph that floored me:

“You also grant TI (Tribune Interactive) the right to use any material, information, ideas, concepts, know-how or techniques contained in any communication you send to us for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products using such information. All rights in this paragraph are granted without the need for additional compensation of any sort to you.”

Having been involved in a social media start-up and partially responsible for the Terms of Service and lawyer budget, I can tell you first hand this stuff gets very boggy. It’s a legal sink hole.  Had Newsday or Fortunoff taken something from my article and turned it into creative or operationalized it at their stores, do you think my check box TOS agreement would hold up in court?  Not likely. You can drive a truck through most Terms of Service mumbo.

Larry Lessig, an amazing mind and founding board member of Creative Commons, has the right idea about this stuff.  Were I Barack Obama, I’d take some of that AIG and GM money and appoint Mr. Lessig Digital Rights Management Czar — then I’d give him some serious legislative firepower and charge him with getting digital rights management right.  A good law in place, protecting all parties, will save the country billions in legal fees. (Don’t tell the lawyers.) Peace!